Judge set to drop charge against aggressive driver

By | July 17th, 2011 | 16 Comments

A couple of unlikely things led cyclist Ken Bereski II to court with an aggravated assault case against a motorist who he says tried to run him off Alton Road on July 12. The first was that Bereski, a Mac computer consultant who lives and works in South Beach and rides his bike to all of his local jobs, caught the incident on video through a rearview camera he had mounted on his back wheel.

Few cyclists take the precaution of video recording their commutes, but Bereski says he has had so many “near-death” experiences biking around Miami that he typically records all of his rides through two cameras, the one mounted on his back wheel and another on his front wheel that points straight ahead. (On this day, the front wheel camera was busted, so he only has rearview footage.)

The video of the ride shows a black Infiniti SUV close in on Bereski from behind, before passing him on the left in possible violation of Florida’s three-feet passing law. At the next light, Bereski pulled up alongside the driver’s window.

“I yelled, ‘How about sharing the road?'” Bereski told me in a recent interview. “The reason I do that is that I’ve found that most people don’t realize I’m allowed to be on the road [on a bike] and the large majority of them are receptive to having a civilized conversation. That’s usually what happens. But this gentleman decided he’d have none of that. He opened his car door, he got out of his car, he assumed a threatening stance. He started cursing at me in Spanish. I don’t speak Spanish so I don’t know the exact words he used other than one the judge translated for me in court, which was pinga.”

When the light turned green, Bereski rode away. A few moments later, the driver passed him again — again in possible violation of the three-feet passing law.

“He passes me the second time, even closer without any indication of slowing down, and when he cut back in [to the lane], he cut in way too early,” Bereski says. “Considering the circumstances, considering the way he had been threatening me, I think it was quite clear that it was with the intent to run me off the road, to clip [the front wheel] as he passed.”

Here’s where the second unlikely thing happens. (It wasn’t Bereski’s run-in with the driver — cyclists have that kind of experience all the time in Miami.) On the next block, Bereski spotted a Miami Beach police officer and told him what had happened.

“I pretty much expected him to shrug his shoulders and say ‘There’s nothing I can do’,” Bereski says. “But apparently I found a sympathetic police officer. He didn’t even wait for me to finish the story of what happened. He immediately pulled the guy over.”

Bereski eventually informed the officer that he had the incident on video, stored on an SD card. The cop popped the card into a reader in his car and they watched the footage right there. The evidence was apparently strong enough for police to arrest the driver on an aggravated assault charge.

Bereski says he would have dropped the charge if the driver agreed to take driver awareness classes.

“That’s all I wanted,” Bereski says. “But unfortunately he plead not guilty, and believes the behavior he exhibited in that video is perfectly acceptable. And that’s made this into a nightmare.”

Bereski says he has faced an “uphill battle” in getting the State Attorney’s Office, which is prosecuting the case, and the judge to take it seriously.

“Even though I have video evidence [of the aggravated assault], the mentality of our culture is that … as a cyclist I don’t belong on the road and I should have moved out of the way,” Bereski says. “In fact, in court on Friday the judge actually said to me I should have been riding further to the right. Further to the right is the parking lane. It is not a bike lane. It would actually be illegal to do that.”

Partly based on that statement, Bereski expects the judge, Jorge Cueto, to drop the case on Monday.

“The expected outcome by pretty much everyone is that … the judge is going to say, ‘That’s not a crime, everyone go home’,” Bereski says. “I think that’s disturbing. I think that’s akin to calling open season on cyclists.”

While all signs point to the case being dropped on Monday, Bereski says he will continue to raise awareness about a cyclist’s right to the road. He recently launched a website called bikeanotherday.com, where he plans to post the videos from his many close-calls on Florida roads. The site only has a few posts at the moment, but that should change soon. Bereski says he has captured “well over” 100 incidents where he’s “nearly died trying to get to work”.

“I don’t think that’s an acceptable fact,” he says.

Update: Bereski says the State Attorney’s Office dropped the charge on Monday.

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16 Comments on “Judge set to drop charge against aggressive driver”

  1. 1 Jordan Melnick said at 12:01 pm on July 17th, 2011:

    NB: This is all Bereski’s rendition of the incident. The video footage has no audio and I did not interview the driver.

  2. 2 Jordan Melnick said at 12:45 pm on July 17th, 2011:

    Moriah Russell via Facebook: “I’m glad somebody was smart enough to get footage of this. I am so sick of this city’s drivers. They are mostly horrible on the road and extremely aggressive. I have been run off the road before in my car. I used to bike around alot and in Miami it is impossible. Fort Lauderdale is not as bad bc there are more bike lanes. Miami needs less aggressive asshole drivers and MORE BIKE LANES (since the asshole drivers are too stupid and mean that they need an organized cheat sheet on how to drive and not run a biker off the road!)”

  3. 3 Jordan Melnick said at 1:39 pm on July 17th, 2011:

    Griselda Be via Facebook: “I left a voice message at Judge Cueto’s office about my personal experience and close encounters with other drivers!”

  4. 4 Alexander Labora said at 3:50 pm on July 17th, 2011:

    I hope J. Cueto sees the light and doesn’t dismiss. I’m proud of the officer and hope our laws become stricter.

  5. 5 Aj Labora said at 5:49 pm on July 17th, 2011:

    In reviewing the video. Part of the problem is that a lane that is too narrow is being shared with a motor vehicle. The bike should take the whole lane. Cars move over most of the time way before they get close to the bike. Once they see the lane is taken they move. They may complainbut they move.

  6. 6 Allison said at 11:51 am on July 18th, 2011:

    Drivers in Miami are horrible. I’ve seen many a bicyclist nearly run off by aggressive driving. Bravo to those who take the risk because I retired my bike after one too many close-calls.

    BUT

    I have nearly hit at least a half a dozen bicyclists because they don’t follow the rules of the road. These are bicyclists who do not stop at stop signs or at red lights.

    It has to be a two-way street. Drivers need to be less aggressive and bicyclists need to follow the rules of the road if they intend to use them.

  7. 7 pfonke said at 12:39 pm on July 18th, 2011:

    FWIW, a judge can’t just dismiss a case because he or she doesn’t like it. It’s possible that a defendant could file a motion saying the facts alleged don’t amount to a crime. That wouldn’t happen this early in a case. In fact, it is unlikely the prosecution has filed charges yet. Felony charges are normally filed 21 days after the arrest.

  8. 8 Jordan Melnick said at 1:19 pm on July 18th, 2011:

    @pfonke, thanks for the clarification. In fact, Bereski just told me that the State Attorney’s Office — not the judge — dropped the charge this morning. Expected outcome, and troubling. That car was clearly within 3 feet of the cyclist. Anyone have legal insight into why that wouldn’t translate into an automatic conviction on that ground?

  9. 9 Jordan Melnick said at 7:25 pm on July 18th, 2011:

    Talk about timing: Miami Beach commissioners shoot down Alton Road bike lanes on the day the case against driver who almost hit cyclist ON Alton Road falls apart. (via Herald)

  10. 10 Ken said at 2:22 am on July 19th, 2011:

    Thanks to Beached Miami for covering this, and for the positive feedback from readers. To respond directly to a few of the commentors concerns: Yes, I could have taken the entire lane, but I try to tread carefully on the very fine line between sharing the road and endangering myself. My lane positioning in this incident was meant to allow motorists to pass with only a partial lane change, but still enough to prevent anything but an intentional hit.

    Allison, I agree that many cyclists need to follow the rules of the road a bit more, but keep in mind how many times cyclists are *forced* to run red lights, because the inductive loop detector does not notice the bike is there. Regardless, no matter how many bad cyclists there are out there, that doesn’t make it acceptible for the driver to behave in the way he did in the linked video.

    Pfonke, the original arrest was on April 12, so this has been ongoing for months. Months during which the SAO, DAO and Judge all took the opportunity to blame me. Sadly the SAO did drop the charges, but more disturbingly this case had long ago been perverted to me being on trial for my usage of the roadway as a cyclist. I cannot recall a single comment or question from the SAO, the defense or the Judge in regards to the behavior of the driver. However, all three parties repeatedly lambasted me for ‘not moving over to let cars pass’ which has absolutely nothing to do with the actual charges in this case. Despite this seeming defeat, I will continue to fight to protect my right to life while using my preferred means of transportation. Although our legal system today essentially declared open season on cyclists and recommended that the right to use the road be treated as an arms race (‘If you aren’t driving a tank you have no right to be there, regardless of what the law says’)… I still believe good can come of this. I still don’t know who to talk to now, but I intend to let the SAO know at the highest levels how unacceptible this type of failure to understand and address a case of criminal assault is

  11. 11 Christian AIMAR said at 4:06 am on July 19th, 2011:

    All with you . This is a réal problem. Haw many bikers killed in that case ?

  12. 12 Leah said at 9:09 am on July 20th, 2011:

    Legislators, not judges, make laws. It’s time to start lobbying them more aggressively and creating better laws that are written to protect cyclists.

    The problem is that bicycles are, in some ways, classified as both vehicles AND pedestrians. It’s a confusing classification. Clearly, bicyclists need more protection because they are more vulnerable than 2 tons of steel. Bicycles need to be more clearly classified under the current law.

  13. 13 Mari Chael said at 1:46 pm on July 22nd, 2011:

    Let’s make aggresive drivers, serial speeders, and distracted drivers accountable. The streets belong to pedestrians, cyclists, and drivers. As we walk and bike more, let’s work on driver awareness. It could happen if drivers are bikers and pedestrians too.
    So what if serial speeders, aggressive drivers, and distracted drivers get their license revoked more readily than they do now? Well, they may have to bike and take transit, which would be great!

  14. 14 name said at 12:25 am on July 23rd, 2011:

    i only ride the sidewalks on alton south of dade. there is no room between parked cars and the next lane. sometime you gotta be a smart bicyclist.

  15. 15 Jordan Melnick said at 12:54 pm on July 23rd, 2011:

    From a YouTube commenter named slowcode: “I’ve been traumatized by torn ligaments in my knee after I was hit by a Ford Bronco on a bike (the driver failed to look both ways at a stop sign). Ever since, I have seen bad driving in respect to bikes on the street and haven’t own one. I’ve come to accept there’s only so much capacity a Miami driver’s brain can take, hence no room for understanding a bicyclist sharing the road (though I also hate seeing bicyclists run red lights, which happens too often).”

  16. 16 Kristofer Jesus said at 11:14 pm on August 1st, 2011:

    Bicycles are not dangerous, and you will never see a cyclist kill someone because he was going too fast, or running a red light . . worst case scenario you see an injury . . the point I want to make is that we are not dangerous, and MOTORIZED VEHICLES are the ones responsible to maintain conduct on the road. Not us cyclist! we can switch between the pedestrian, and cyclist role because we aren’t the dangerous ones.

    If our rights aren’t protected they might as well say that pedestrians Must yield to cyclist on sidewalks because we are the more powerful ones, and that they must yield to us if we decide to ride in malls ect ect. . .
    It would be the same thing that cars do to us on the road.

    The point these crooks are making are something out of Bizarro world, it just doesn’t make any sense .


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