Legal Pleadings:

Motion to Dismiss – Traffic Infraction

Pursuant to Rules 3.190(b) (motion to dismiss – generally) and 3.190(c)(4) (motion to dismiss – failure to establish a prima facie case), Florida Rules of Criminal Procedure; Rules 6.150(b) (which permits a defendant to “offer evidence of other witnesses through the use of one or more affidavits [which] shall be considered by the court only as to the facts therein that are based on the personal knowledge and observation of the affiant as to the relevant facts,” but not “for the purpose of establishing character or reputation”), and 6.460 (“the rules of evidence applicable in all hearings for traffic infractions shall be the same as in civil cases, except to the extent inconsistent with these rules”), Florida Rules of Traffic Court; Rule 1.510, Fla. R. Civ. P. (summary judgement); Rule 6.540, Florida Rules of Traffic Court (motions “may be in writing, filed with the clerk or violations bureau and shall state the grounds on which it is based” – and counsel shall be notified when the official sets a time for the hearing); and F.S. §318.14(6) (“The commission of a charged infraction at a hearing under this chapter must be proved beyond a reasonable doubt”), the Driver, by and through his undersigned counsel, hereby moves to dismiss the traffic citation that is the subject of this case, and in support thereof, states as follows:

Citation and Facts

1. On September 25, the client was cited for an alleged violation of right of way to pedestrian, after a bicyclist, W. R., a 19 year old male, who was on a sidewalk (and not in the marked bicycle lane), while riding on the wrong side of the street, facing traffic, rode his bicycle in front of the client’s vehicle, which had lawfully stopped at a stop sign, as it reached a dead-end into the side road.
2. The Florida Uniform Traffic Citation, as did the Florida Traffic Crash Report, asserted a violation of F.S. §316.130(7)(a), and states as follows:
The driver of a vehicle at an intersection that has a traffic control signal in place shall stop before entering the crosswalk and remain stopped to allow a pedestrian, with a permitted signal, to cross a roadway when the pedestrian is in the crosswalk or steps into the crosswalk and is upon the half of the roadway upon which the vehicle is traveling or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.

(emphasis added).

3. Attached are photographs of the area in which the accident occurred. Nine photographs are contained in Composite Exhibit D, and depict the following views:
a. #1 – K. driving east (approaching intersection at side road)
b. #2 – Intersection of K. and side road – stopped at stop sign
c. #3 – On K. facing south on side road
(1) Obstructed view at white line (before crosswalk)
(2) Obstructed view at first white line of crosswalk
(3) View from inside crosswalk
d. #4 – On Knotah facing north on side road
e. #5 – Two photographs of vehicles in the crosswalk – demonstrating necessity for drivers to pull into crosswalk to obtain unobstructed view at intersection
4. The client was driving east on K., and was lawfully stopped at the stop sign at K. and the side road. At the end of K., where it intersects the side road, a driver can either turn left or right (that is, north or south, respectively).
5. The client was attempting to turn right (east on the side road).
6. As can be seen from the photographs, where the stop sign is located, and where the white lines are located (which are also used as a crosswalk), are substantially set back from the intersection, such that any driver cannot see who is coming along the sidewalk from the south (heading north on the side road), because there is a fence causing substantial obstruction.
7. The client stopped at the stop sign (at the crosswalk), looked left, right and then left again. However, in order to see any oncoming traffic coming on the side road, he had to let off the brake, and move closer toward the side road.
8. It was at that time the client felt an impact on his vehicle. He then realized that a bicyclist, who was improperly riding his bicycle on the sidewalk, and riding in the wrong direction (facing traffic, and not riding with the traffic, and not in the marked bicycle lane), crossed in front of him, coming from right to left (that is, from the south, heading north on the side road), causing the bicycle to impact the client’s vehicle. The client was not accelerating at the time, as he had just let off of his brake to coast up to the intersection.
9. The bicyclist had a scratch on his hand, but his bicycle was damaged. First responders were called, and the Mr. R. promptly answered all questions, confirming he did not have a concussion. As a precaution, Mr. R. was taken to Baptist South, but was released the same day, without injuries.
10. As evidenced by the Florida Uniform Traffic Citation, all boxes were checked “No” confirming there was:
a. No property damage;
b. No injury to another;
c. No seriously bodily injury to another;
d. The crash was not fatal.
11. This was an accident that occurred due to an obstructed view of vehicles, bicycles or pedestrians coming from the right, on the side road (or the adjacent sidewalk), combined with a bicyclist improperly riding on a sidewalk, on the wrong side of the street, who failed to travel in the marked bicycle lane, and who did not stop at a crosswalk to cross the street.
12. More to the point, the citation here is invalid, regardless of the correct view of the cause of this accident, as will be demonstrated below, in the Memorandum of Law.

Position of Citing Officer

13. By his attestation to this motion below, the client confirms that the Officer A., who cited him with failure to yield right-of-way to pedestrian, told him, at the time he wrote the citation, that, based on where the stop sign and crosswalk are positioned at this intersection – and the fact that there are obstructions (such as fences) which block the view of traffic on the side road, that, if he (the officer) was the one who received the citation, he would contest it.
14. Undersigned counsel’s paralegal spoke with Officer A. on October 9, and confirmed his conversation with the client. Attached is the Affidavit of undersigned counsel’s paralegal confirming this conversation with Officer A.
15. It is undisputed this is not a properly designed intersection, and certainly not for bicyclists who are on the sidewalk, and who fail to stop at that intersection.


Elements of Citation

16. F.S. §316.130(7)(a), the statute cited in the citation, states as follows:
The driver of a vehicle at an intersection that has a traffic control signal in a place shall stop before entering the crosswalk and remain stopped to allow a pedestrian, with a permitted signal, to cross a roadway when the pedestrian is in the crosswalk or steps into the crosswalk and is upon the half of the roadway upon which the vehicle is traveling or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.
(emphasis added).
17. As can be seen from the portions of the statute underlined in paragraph 13 above, the statute contains the following six (6) elements:
a. Intersection
The incident must have occurred at an “intersection.” That element applies here, since this accident did occur at an intersection.
b. “Traffic control signal in place”
The intersection must have a “traffic control signal in place.” That is not the case here. As can be seen by the photographs, the intersection here had only a stop sign. That is not a traffic control signal. Traffic control signal signals are defined in F.S. §316.075, and clearly involve “signals exhibiting different colored lights, or colored lighted arrows.” Since this was only a stop sign (without any lights), the statute does not apply, and thus proof of this element must fail.
c. Stop
The driver shall stop before entering the crosswalk. As demonstrated herein, and as confirmed by the attached Affidavit, the client properly stopped before entering the crosswalk, and thus proof of this element must fail. Indeed, the citing officer actually invited the client to challenge the citation, since the way the stop sign, crosswalk and fence are set up, the driver on K. must move forward, into the crosswalk, to be able to see traffic coming from the left or right on the side road.
d. “Permitted signal” for pedestrian
Here, there was no “permitted signal.” Indeed, as noted, there was no signal at all. For that simple reason, the bicyclist had no “permitted signal” authority to cross the roadway, and thus this element likewise must fail.
e. Pedestrian is in crosswalk
As noted, not only was Mr. R not a pedestrian, but he was not in the crosswalk. Instead, he drove his bicycle from the sidewalk, into the crosswalk, after the client was already positioned, in the roadway, prepared to make a turn. Hence, this element must fail.
18. In short, 5 of the 6 elements of this statute do not exist.
Pedestrian Basis for Citation – Does Not Apply
19. Moreover, even if Mr. R. was a pedestrian, “No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.” F.S. §316.130(8). That is precisely what Mr. R. did, in violation of the statute, and as the proximate cause of his own accident.
20. Again, the bicyclist in this instance was not a pedestrian. He was on a bicycle, on a sidewalk, and did not stop before crossing the crosswalk, and thus it was “impossible for the driver to yield.” Id.
21. As noted above, a pedestrian is defined as, “Any person afoot.” F.S. §316.003(28). The bicyclist here was not a “pedestrian.” Therefore, the citation for an alleged violation of right of way to a pedestrian cannot lie.

Bicycle Regulations

22. It is undisputable that Mr. R. was on a bicycle. Therefore, Mr. R. must comply with bicycle regulations.
23. “Any person operating a bicycle upon a roadway at less than the normal speed of traffic at the time and place under the conditions then existing shall ride in the lane marked for bicycle use or if no lane is marked for bicycle use, as close as practicable to the right-hand curb or edge of the roadway.” F.S. §316.2065(5)(a). Therefore, Mr. R. should have been riding his bicycle in the bicycle lane, or on the street, with the flow of traffic – not on a sidewalk, traveling towards oncoming traffic.
24. “Except as otherwise provided in this section, a violation of this section is a noncriminal traffic infraction.” F.S. §316.2065(19). As a matter of law, it is Mr. R. who should have been cited.
25. In addition, the entirety of the State’s proof consists of the Florida Uniform Citation and/or the Traffic Crash Report, which is inadmissible hearsay. State v. Inman, 347 So. 2d 791 (Fla. 3d DCA 1977) reversed the defendant’s conviction for careless driving, stating that “statements made by witnesses to the accident,” which formed basis of accident report, and the “ex post facto observations of the officer” were hearsay, and thus insufficient to present a prima facie case against defendant for careless driving. Inman at 793.
26. Similarly, the Traffic Crash Reports are inadmissible under the Accident Report Privilege. State v. Marshall, 695 So. 2d 686 (Fla. 1997) and F.S. §316.066(7) (“No such report or statement shall be used as evidence in any trial, civil or criminal.”)
27. Hence, not only is the citation void of any admissible evidence, but, as noted, the facts alleged do not establish the basis for a violation of right of way to pedestrian citation.

Motion to Dismiss – Law

28. This Motion is filed pursuant to provisions of Rule 3.190(c)(4), Fla. R. Crim. P., which provides that a motion to dismiss may be filed on the grounds that –
there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.
29. The facts, based on the eye witnesses’ sworn testimony, are undisputed, and application of the law to the undisputed facts shows that the State has not, and cannot, meet its factual burden as to this charge. Accordingly, dismissal of the charge is appropriate.

Summary Judgement

30. This Motion is also filed pursuant to provisions of Rule 1.510, Fla. R. Civ. P., which provides for summary judgment.
WHEREFORE, the client respectfully requests the Honorable Court grant his motion and dismiss the September 25 citation.