We’ve all felt the fear.
The roar of a revving engine, followed by sudden buffeting from the air being pushed out of the way. The involuntary stab of fear wondering whether you and your mates are going to survive the next few seconds.
Trying to get police to act on private video capture of these incidents has been an almost entirely frustrating and unsuccessful experience.
But there is hope. It is possible. A small handful of persistent riders have succeeded in working the system to have drivers prosecuted for risky overtaking. This two-part article aims to show you how.
Getting to First Base: It’s all about the evidence.
Warning: legal stuff ahead. I am not a lawyer and the following does not purport to be legal advice. It is general purpose information only, intended to educate about general principles. If you need specific legal advice pertaining to your circumstances, engage your own lawyer.
OK, now that we’ve got that out of the way let’s get on with what you came here to learn.
The Beyond Reasonable Doubt Test
Driving offenses fall under the criminal arm of the law. This means that to have the offense prosecuted you need to establish that it occurred to the standard of beyond reasonable doubt. Merely being more probable than not does not cut it.
Further, unless they are especially serious, the Criminal Procedure Act 1986 places a six-month time limitation for commencing proceedings for traffic offences. The six months begins from the date of the alleged offence. The clock is ticking.
What exactly is the law?
The relevant road rule in NSW is Regulation 144-1. As at the date of writing, the full wording may be found here. In summary, if the speed limit is up to and including 60km/hr a motor vehicle must leave a minimum of 1 metre passing distance to a bicycle rider. If the speed limit is over 60, a motor vehicle must leave a minimum of 1.5 metres when passing.
To establish the offense occurred
You must first establish:
- The identity of the vehicle
- That the vehicle overtook you
- The time and date of the offense
- The speed limit in effect on the road at the time of the offense
- The location and direction of travel at the time of the offense
- The distance at which the vehicle overtook you
In addition it is helpful to establish the following
- The identity of the driver
- Traffic conditions at the time of the offense
- If at night, the fact you were compliant with lighting requirements for night riding
- That you were riding in a consistent and predictable manner
The easy availability of action video cameras has made most of the above provable, with one exception: the distance at which the vehicle overtook you. This is where most submissions fail.
How to prove passing distance?
What doesn’t work
Merely having it look like the driver almost hit you on the video footage will not be enough. With the fisheye lens effect, distances are subjective and difficult to judge. All that an astute defense counsel has to prove in court is that there is reasonable doubt about the distance and they have got their client off scott-free Police know this through bitter experience, and will not take action without further hard, objective evidence.
Some riders have attempted to use grid overlays on their video footage to show distance, and some cameras (such as the Fly12) even have the capability to superimpose “tram tracks” on the video capture to show where a vehicles tyres would be on the road at the minimum legal passing distance. The question then arises, how do we know the grid lines or tram tacks are accurate? Unfortunately none of this is sufficient to prove passing distance.
What does work
The only thing I have found that consistently meets the beyond reasonable doubt standard is to capture both bike and vehicle riding over paint or other markings on the road, and then go back and measure those markings with a tape measure.
An exception of which I am aware is of the rear-facing camera of an acquaintance showing his silhouette reaching out to touch the side of the ute as it passed in the afternoon sun – a lucky coincidence of time of day, bright sunny weather and direction of travel. Also high risk.
Analysing video for objective evidence of safe passing distance.
Due to circumstances varying so much, it is not possible to provide a one-size-fits all template. However, by showing you some case studies I hope to give you some examples of what to look for.
At the point of overtaking, the vehicle and bicycle were travelling over a 40km/hr school zone sign on the road surface outside of school hours. Applicable speed limit at this time was 70km/hr, meaning the driver should have allowed a metre and a half.
The green ute passed kissing the left hand edge of the zero with the left hand edge of its tyres. The bicycle passed through the centre of the four. Measurements were taken to the bottom of the vertical face of the concrete gutter using a steel builder’s tape measure.
After taking measurements, it was clear the driver left about half a metre, well short of the 1.5m required on that road at that time. The driver confesses when confronted by the officer and gave the excuse that he was “having a bad day”. Thanks for sharing.
This incident seems to be the first time a NSW traffic infringement notice was issued from privately submitted video evidence for a Reg 144-1 infringement.
Vehicle and bicycle were in lane 2 of 3. Video from both cameras shows that vehicle never left lane 2 when overtaking: right tyres never crossed left hand edge of right side dividing line.
Subtracting publicly available information on the vehicle’s width from the measured width of the lane and the width of the bicycle shows that it is impossible for the driver to have left the rider more than half a metre.
The video also shows the driver high-beaming the rider, blinding him, and proves the rider was visible to the driver for more than 9 seconds prior to overtaking. The measurements supported the contention that had the rider not swerved out of the lane at the last second a collision was probable.
The driver was not happy when approached by police but did not contest the traffic infringement notice. This was the second life-threatening incident I’ve had involving this vehicle so it was a relief that he was finally caught and charged.
Vehicle overtakes cyclist on pedestrian crossing, slowing for a speed hump and then accelerating again. Left edge of tyre kisses left edge of zebra paint stripe. Measurements show vehicle left a 1.2m gap to kerb, with rider in the middle of the gap.
Ultimately this incident did not proceed to a Traffic Infringement Notice being issued, even though the infringement was regarded by the police as being proved.
This was due to the slow speed, the police judging the driver was genuinely mortified when shown the video, and the event being at the lower end of offending with no aggravating factors. While I disagree that inattention is less of a concern than deliberately close shaving someone, I felt more was to be gained by being reasonable and maintaining the respect and goodwill I had built up dealing with these officers. The driver is also aware that riders carry cameras and that he can’t tell who they might be.
OK, so now you’ve reviewed your video and found you have some objective reference points you can go back and measure with your tape.
You now need to go back to the site and physically take the measurements. If possible, go back with a mate who can manage traffic flow while you measure.
How do you present this information to Police in a way that makes sure they “get it” and are motivated to act?
For that you will have to wait for Part 2… Joining the Dots.