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Anchorage motor vehicle laws stack the deck against cyclists

Craig Medred
Anchorage Police Department officers train to become bicycle instructors during a July 19, 2012 class presented by the League of American Bicyclists. A trial stemming from the 2008 death of cyclist Jonathan Johnson highlighted Anchorage laws that appear to shield drivers and leave bicyclists at risk. Loren Holmes photo

If you want to kill someone in Alaska and get away with it, catch them out on a roadway riding a bicycle and run them down with your car or truck.

Anchorage residents curious as to why the Anchorage Police Department has had nothing to say for weeks about the Jan. 2 death of 65-year-old cyclist Eldridge Griffith in a Minnesota Drive intersection might note what a state prosecutor told a grand jury after another cyclist was killed at a different intersection in the state's largest city in the fall of 2008:

If a motorist ignores a red light, powers through an intersection and kills a cyclist with a sport utility vehicle, it is simply not a crime.

According to court records in the case of motorist Melissa Rabe, a grand jury was informed that such a death "is not a criminal case from the state's perspective. This would be a civil liability case. You have a red light violation." Those same court records say the grand jury "struggled" with this idea.

"At the conclusion of the state's presentation," the documents say, "the foreperson asked the prosecutor: 'If we determine that she wasn't impaired by THC (the active ingredient in marijuana) but she ran the red light and hit him, what are our options in that regard?'

"To which the prosecutor responded: 'Well, you have to find that she was criminally negligent then. And if you don't find that she's criminally negligent and its just civil negligence, you've heard from (APD) Investigator (Steve) Buchta that mere civil negligence results in nothing more than a red light citation, even though you caused the death of an individual by going through a red light.'"

A green light does not mean 'go'

The "individual" in this case was 19-year-old Jonathon Johnson. Rushing to get to work on the morning of Oct. 20, 2008, he was struck and killed at the intersection of 40th Avenue and C Street in midtown Anchorage.

An Alaska Native from Emmonak along the Yukon River in far western Alaska, he'd moved to the city at age 14 to live with foster mom Verna Gibson, an Anchorage resident who has helped many troubled young teens grow into responsible citizens.

"He was just a wonderful young man," Gibson said.

More than five years after Johnson's death, she still holds herself somewhat responsible for what happened.

On that fatal fall morning, she said, a strangely acting young man had come to the door of Gibson's home. She sent him away, and he departed. But she worried a little about his behavior and wondered if he'd really left the neighborhood. So she asked Johnson if he'd take a quick spin around on his bike before he left for work to make sure the man was gone.

Johnson did and reported everything appeared fine. Then, running a little late, he headed east across Anchorage toward his job at a car wash on the far side of C Street, a busy thoroughfare.

Motorists who saw him at the 40th and C Street intersection just before his death said he was clearly hurrying. Deborah Mirando told police she witnessed the fatal collision that killed Johnson. Mirando was stopped at the light on A Street, looking west toward C Street, when Johnson entered the intersection near the Sea Galley restaurant.

The light in front of her, she said, "was, of course, red. And I just saw this biker, and he was in solid black with his hoodie on ... He wasn't even looking around. He just cruised, but then that car was coming, and I was like, 'OK, is one of them going to stop? Is one of them going to stop?'

"And neither one did, and she just hit him so hard."

Rabe stopped after the collision and got out of her car. The summary of her statement to police says that "right after the collision, when she stepped out and began to call 911, she yelled out, 'I ran the red light.'"

So what, Wallace Tetlow, her attorney, argued in court two years later. As Tetlow viewed the Anchorage Municipal Code, it is the responsibility of bicyclists to watch out for motor vehicles, no matter where the cyclists happen to be.

"AMC 9.38.020, 9.20.020 and 9.20.040 all address a bicyclist's duties when operating a bicycle on the roadway or in a crosswalk," Tetlow wrote in court filings. "Whether the bicyclist is treated as a pedestrian or motorist, all of the ordinances provide 'A person shall not propel a bicycle so as to suddenly leave a curb or other place of safety and move into the path of a vehicle that is so close as to constitute an immediate hazard.'"

Tetlow essentially argued the accident was Johnson's fault because he was dressed in dark clothes, had that hoodie up, and was apparently paying attention to the green light at the intersection rather than to the traffic.

Some of the witnesses and police at the intersection appeared to share this view. A transcript of a recording at the scene revealed an Anchorage patrolman asked motorist Garrett Savok, another witness, "So you don't think ... he might have had the right of way, but wasn't paying attention and that's why he got hit?"

"Yes," Savok said. "Yes, I noticed he had headphones in as he was going by...."

After listening to Savok and other witnesses to Johnson's death, the grand jury did eventually vote to indict Rabe on manslaughter charges, but not because she went through a red light. That was, as prosecutors said, a simple matter for a citation. The problem, in the grand jury's view, wasn't that Rabe was driving badly; it was that she was driving stoned.

Marijuana, not manslaughter, at issue

What THC actually does to driving ability is a question yet to be fully answered.

"Early reviews of the literature on the association of cannabis use with collision risk concluded that conclusive demonstrations of cannabis use as a risk factor for collisions did not exist," the European Monitoring Center for Drugs and Drug Abuse noted after a lengthy review of the data in 2008. But, that review added, there was growing evidence stoned drivers are bad drivers.

The journal of the American Association for Clinical Chemistry last March reported a new study that concluded "cannabis smokers had a tenfold increase in car crash injury compared with infrequent or nonusers after adjustment for blood alcohol concentration. The states of Washington and Colorado, having legalized marijuana, are now wrestling with how to determine what constitutes a cannabis-impaired driver. It's a complicated question that appears to depend in part on how accustomed the driver is to getting stoned.

But when Rabe's case started moving through the Alaska court system in 2010, lawyer Tetlow cited the old research on THC and challenged the state's basis for telling the grand jury stoned drivers are bad drivers, along with the state's authority to test Rabe's blood for THC after the crash.

Rabe's blood, he argued, "was obtained without probable cause to believe she was impaired and without a search warrant." There is a state law requiring motorists give blood after a fatal accident, but since an Anchorage police officer at the accident scene recorded his observation that Rabe didn't appear drunk or stoned, there was, in Tetlow's view, no probable cause to check the blood for THC.

Likewise, he said, police took a statement from Rabe before she was warned of her Miranda rights against self-incrimination.

"Because evidence of Ms. Rabe's statement as to marijuana use and evidence pertaining to the blood draw and the subsequent testing of the blood sample was inadmissible," he wrote, "all of the testimony regarding THC, its use and effects upon the human body and driving ability and various alleged studies, was also inadmissible."

Furthermore, he argued, police officers who testified as to the effects of marijuana on drivers weren't qualified to do so. Take that away, he told a judge, and the only "admissible evidence on the issue of recklessness established that Ms. Rabe failed to stop for a traffic signal. Committing a traffic violation does not, in and of itself, establish recklessness, as the state conceded at grand jury."

Witnesses, Tetlow added, "indicate an innocuous basis for Ms. Rabe's inability to perceive the bicyclist until the last minute: because he was wearing all black, traveling at a high rate of speed, not paying attention to oncoming traffic, and coming out from in front of a car that was blocking Ms. Rabe's view of the bicyclist.

"Had the grand jury been accurately advised that the bicyclist had a duty to yield to oncoming traffic, as stated by the cited ordinances, the grand jury likely would have concluded that Ms. Rabe was not at fault for the collision, thereby negating 'recklessness.'"

A state Superior Court judge didn't buy all of that, but he did rule the THC evidence could not be used against Rabe. Prosecutors subsequently dismissed the case against her because, as they told the grand jury, if you ignore a traffic signal, that's "nothing more than a red light citation, even though you caused the death of an individual by going through a red light."

Dozens of Anchorage cyclists polled by Alaska Dispatch said they were unaware of the danger this presents for them and pedestrians. All said they thought the green light existed to tell them it was safe to cross an intersection.

Who cares if a cyclist dies?

No one in the Alaska legal system ever bothered to explain to Gibson the circumstances of Johnson's death or what happened to the case of the woman charged with killing her foster son. When reached by telephone early this year, she admitted she still wonders what happened on that fateful morning and why the charges against the driver were dropped. The case just went away, she said. She doubted that Johnson's birth parents in Emmonak were ever told why the driver who killed their son after running a red light was allowed to walk out of court a free woman.

Rabe, who was 24 at the time of Johnson's death, has moved on with her life now. And Johnson is in his grave because he thought a green light meant it was safe to cross a street in Alaska's largest city.

There is a message there for anyone who rides a bike or walks in that place many mockingly refer to as "Los Anchorage."

Whether Griffith, a retired counselor from McLaughlin Youth Center, is yet another victim of the Alaska's seemingly strange interpretation of traffic laws remains to be seen. Police have provided almost no details on the collision that killed him, saying only that an investigation continues. Friends, however, have said he was not the sort to enter an intersection unless he had a green light. He was, they said, a responsible cyclist who had ridden the streets and bikeways of Anchorage for decades.

It could be that he just didn't know that in Anchorage, green doesn't mean it's OK to cross. In Anchorage, as Tetlow observed, the green light only means it's safe to cross on a bike or on foot if you check to make sure you're not getting in front of any motorists who've decided they want to run the red light.

Contact Craig Medred at craig@alaskadispatch.com.