Beware. Your GPS may be collecting evidence against you. More and more motorcyclists today are using GPS (Global Positioning Systems) to plan trips, get directions, and keep track of miles traveled. However, keep in mind that, if you are in an accident, you may be collecting evidence that could be used against you in both a criminal and civil trial.

Many systems allow you to keep track of your speed. We have come across jurisdictions which, at the scene of an accident when speed is a question, will seize a crash victim’s GPS, get a search warrant, and download the information pertaining to speed. As a matter of fact, that was done in federal court in a case along the Blue Ridge Parkway when a park ranger pulled in front of a motorcyclist whom the parkway ranger later claimed was speeding. The U.S. Government used that information to charge the injured motorcyclist with reckless driving and thereby denying him the ability to recover for his injuries.

Such action does more than subject the crash victim to a speeding ticket. It can, if the injured party was speeding, put their ability to collect damages for their injuries at risk. Virginia and North Carolina are contributory negligence state. That means that if the party who injured you can show that you were in some way at fault in causing the accident, then your claim can be denied. Speed can be used as a contributing factor to deny an injury claim, even if the other party is more at fault than you.

Now keep in mind that I am in no way suggesting that you should not use a GPS on your motorcycle. I am merely suggesting that if you do, keep in mind that, depending on the system and how you use it, you could be collecting evidence that could eventually be used by the party that injures you to avoid paying for the injuries that they caused.

If you have any further questions or comments concerning this article or any other matters concerning your rights as a motorcyclist, please contact us at 1-800-321-8968 or at matt@motorcyclelawgroup.com.

The preceding is for informational purposes only and should not be considered legal advice. The laws governing the above may be different in your state.
 

Residents and visitors to the Commonwealth of Virginia - have you ever attempted to park in a public parking lot or parking garage and been faced with a sign reading in whole or in part that motorcycles are not allowed?  Have you ever attempted to use any roadway to enter any public property only to find out that motorcycles may not enter the property?  If you have then the locality which is restricting you access merely because you are on a motorcycle is breaking the law. 

Section 33.1-13.1 of the Code of Virginia, prohibits the imposition of any requirement of which the principal purpose is to restrict or inhibit the access of motorcycles and motorcyclists to any highway, bridge, tunnel, or other transportation facility.  This provision applies to any roads or transportation facility undertaken or operated by counties, cities, towns and other political subdivisions of the Commonwealth where public funds have been used in whole or in part to plan, design, construct, equip, operate, or maintain the facility.  For the purposes of state law a parking garage or parking lot is a transportation facility.

This issue has arisen several times over the last year.  This past summer my wife and I were visiting Williamsburg with our two children.  We were in our SUV (I apologize for that) waiting to park in the Prince George Street parking garage.  Ahead of us was a motorcyclist attempting to enter the garage.  It seemed to be taking longer than it should have so I rolled down my window to see why.  At that point I heard the attendant say that motorcycles were not allowed in the garage.  I could see my wife wince (she knew what was coming) as I exited the car.  I found from the attendant that the garage is owned and operated by the City of Williamsburg.  The very next Monday a letter went out to the city informing them of the law in Virginia.  Within 30 days, that garage was opened to motorcycles.  The issue also arose in Big Stone Gap Virginia.  The town operates a cemetery.  The town did not allow motorcycles to enter the roadways of the cemetery.  A letter went out and that matter has been remedied as well. 

Additionally, if a garage attendant tells you that it is a private garage do not give up.  That happened in Richmond Virginia.  It turned out the garage was privately owned and therefore not subject to the statute.  However, a Freedom of Information Act letter went out and it was discovered that the garage was originally constructed in the early 80’s with public money.  Motorcycles can now park there as well. 

The bottom line is that if the state, or any city county or town uses public money to build, maintain or operate any roadway or transportation facility, they cannot keep motorcycles from using them.  We as motorcyclists pay taxes which fund these projects.  We should not be told that we can't use them. 

I would encourage any motorcyclist who sees any situation similar to the ones described in this article to let the owners know that they are breaking the law.  If that does not correct the situation, feel free to give my office a call.  We don't charge a dime to enforce this statute.  We as motorcyclists have the same stake in protecting equal access to public property as you do, and we will be more than happy to help. 
If you have any further questions or comments concerning this article or any other matters concerning your rights as a motorcyclist, please contact us at 1-800-321-8968 or at matt@motorcyclelawgroup.com.

The preceding is for informational purposes only and should not be considered legal advice. The laws governing the above may be different in your state.
 

I have been hesitant to write on this topic for two reasons. One is that I covered this topic about five years ago. However, I am still finding people who think that they have to make a statement at the scene of an accident so they do and end up hurting themselves. Secondly, I try very hard to make these emails informative and not an advertisement for my firm. If you are going to take the time to read these articles then you deserve information not an infomercial. However, over the past couple of years I have been traveling around the country speaking about what your rights are during a traffic stop. In speaking to people, the one thing that always raises eyebrows is when I tell people not to make a statement at the scene of an accident; not even to the police. I often get responses such as don't I have to make a statement to the police? And why shouldn't I? I have nothing to hide! The answer to those questions is that you have an absolute right to not speak to the police. In fact, at the scene of an accident you may be harming yourself by doing so.   

You put on your leathers. You put on your boots. You put on your gloves. You put on your helmet. You check your bike. You crank it. You look both ways. You pull away from the curb. You go down the road thinking how wonderful it is to ride a motorcycle. You’ve done all the right things. You’re wearing all the right equipment. You’re taking all the precautions to feel safe: but are you?

The vast majority of automobile vs. motorcycle accidents are the fault of the automobile driver. In most cases, the automobile driver has insurance, but is it going to be enough? In other words, are you going to be adequately covered by what someone else has purchased to protect you?  The minimum limit for liability insurance in Virginia is $25,000.  In North Carolina it is $30,000 and in South Carolina it is a mere $15,000. That means that since most people are covered by insurance only because the law says they have to most are driving with the minimum liability coverage.

What does that mean to you?  Let’s assume that you are injured in a motorcycle crash that is the fault of another driver.  You get the most common motorcycle injury which is a lower extremity fracture.  The doctors have to operate and put your leg back together.  They bolt it and screw it and they put some internal pins in there and keep the whole thing wired up.  It is going to take you several months before you’re able to walk without crutches. Let’s further say that the guy who hit you had the minimum coverage.  Your medical bills are going to run around $50,000 to $75,000.  You have also missed about 8 weeks of work.  Is $15,000 going to be enough to cover your injury?  Is $25,000 or $30,000?  You already know the answer.  

But wait, can't I sue them you ask.  Yes you can, but the real question is can they pay.  If they can't, a judgment does you no good.  You can chase the person down for years and never see a dime from them.  Also, keep in mind that the vast majority of personal injury judgments can be discharged in bankruptcy.  That means that you are left holding a judgment on which you cannot collect. 

Is there a solution to this problem? Indeed there is. The answer is purchasing higher limits of insurance. Here’s how it works.  First let me start with Virginia because it is unique.  

In Virginia, what you carry in liability coverage you automatically have in uninsured motorist coverage (which protects you if someone without insurance hurts you in a motor vehicle accident) and underinsured motorist coverage (which protects you when someone hurts you in a motor vehicle accident and they do not have enough insurance to compensate you for your injury).

Let’s assume your injury is worth $300,000.  Let’s further assume that you have a $100,000 liability insurance policy with $100,000 uninsured/underinsured motorist protection and the person who causes the wreck has a $25,000 liability policy.  You go to court and get a judgment for $300,000.  The defendant’s company will pay its $25,000 and then you will receive $75,000 from your company under the underinsured motorist provision of your policy (because you have $75,000 more than they do).   It gets better.  You have a policy on your car which has $250,000 of liability and $250,000 uninsured/underinsured motorist protection.  You can collect on the policy on your automobile which was sitting in the driveway at the time of the accident.  In Virginia, you get to add your policies together to determine what the total amount of your coverage is.  That is called stacking.  If you have four policies with $100,000 in liability coverage then you actually have $400,000 worth of liability coverage regardless of which vehicle you are in.  This protection extends to you as well as any family member who resides with you.  However, be very careful because taking money from one company can bar your right to recover from another.  You always want legal assistance in dealing with multiple policies. 

In North and South Carolina you also have uninsured and underinsured coverage which protects you.  Look at your policy and you will see that you are paying for it.  Additionally, stacking is allowed in many situations as well.  However, even in the instances where you cannot, the best way to ensure that you are protected is to have as much liability, uninsured motorist coverage and underinsured motorist coverage that you can on your vehicles, especially your motorcycle.  That way if a person hurts you and they do not have enough coverage, you are protected.  Your insurance will pay you the rest up to your limits. 

The best news is that this coverage is cheap.  The average cost of increasing a $25,000 policy to a $100,000 policy is $20-$30 every six months.  For a $500,000 it is about $30-$40.  It is cheaper than your average set of leathers, and cheaper than the average helmet.  You protect yourself by honing your riding skills and riding with the proper gear.  Why not protect yourself and your family with the proper insurance.

No motorcyclist should be riding with less than $500,000 in insurance.  Call your insurance company today and increase your liability, uninsured and underinsured motorist coverage.  Do not leave protecting you and your family to the other person.

If you have any further questions or comments concerning this article or any other matters concerning your rights as a motorcyclist, please contact us at 1-800-321-8968 or at matt@motorcyclelawgroup.com.

The preceding is for informational purposes only and should not be considered legal advice. The laws governing the above may be different in your state.
 

We as motorcyclists are a different breed.  For most of us our motorcycles are more than a mode of transportation.  They are more like treasured art which we have over time modified and created to make unique to us.  When someone damages or destroys the precious object in an accident, to us, they have damaged or destroyed a priceless artifact, not just damaged a motor vehicle.  However, to the insurance companies, our motorcycles are merely motor vehicles which carry a fair market value just as any other motor vehicle does.  Unless you have protected your bike, if it is totaled in an accident, all you will receive is fair market value, regardless of how much you owe on it or how much you think it is worth.

Fair market value is the amount that the motorcycle would sell for on the open market.  That should not be confused with what you would ask for if you were to sell it.  The insurance companies will look to the NADA many times to gauge the value of a motorcycle.  They will also look at what similar motorcycles are selling for in your geographic area.  I often get complaints that the insurance company is not taking into consideration items such as chrome or exhaust in computing a value.  Keep in mind that fair market value is not computed by adding up all that you have invested in the motorcycle.  If you add $2,000 worth of chrome to your bike that does not necessarily mean the bike is worth $2,000 more than before you added it.  The question is, can I as a buyer go out and purchase another bike like it for less.  The answer is often yes.  You can go on Cycle Trader or eBay and find a plethora of motorcycles chromed to the hilt being sold for much less than you would sell yours for.  In fact, Jim Cannon, who is with our firm, tracks what motorcycles are selling for on sites such as EBay in order to be able to better articulate to an insurance company why a motorcycle is worth more than they are offering.  That is why I tell clients that if they want to put chrome on their motorcycle do it because you like the chrome not because you want to add value to your bike.  I also advise that they save their receipts.  While you can't always get the full value of what you invested, you can sometimes get more by documenting what you have invested depending on what was added and when it was added. 

So what can you do to protect your bike?  Other than what I advised above, you can purchase gap insurance.  Now do not be confused.  Gap insurance does not mean that you get replacement value for your motorcycle.  What gap insurance does is pay the difference of what the motorcycle is worth, and what you owe.  It keeps you from being "upside down" on your loan.  By way of example, let's say you buy a bike for $15,000.  One year down the road you owe $13,500 but the fair market value is now $11,000.  You are in an accident and your bike is totaled.  The insurance company is going to pay you $11,000.  That means that you will still owe $2,500 on a motorcycle that you do not have any more.  Trust me; those are painful payments to make.  However, if you bought gap insurance, that would make up that $2,500 difference so that you would not find yourself owing further on the bike. 

You can also insure your motorcycle for a certain amount, often called scheduled value.  What that means is that if your bike is totaled, the insurance company will pay that pre-set amount.  Take that $15,000 bike that you bought in the previous scenario.  You schedule the bike at $15,000.  A year goes by and it is worth $11,000.  If you are in an accident and the bike can be fixed, then the insurance company will pay to have it fixed (they have to put in the same condition it was before the accident).  However, if it is totaled, they will pay you $15,000.

The bottom line is that the vast majority of us are riding with what is called an "actual cash value" policy (ACV).  If our motorcycle is totaled we will get the actual cash value of that motorcycle.  If you as many of us do see your motorcycle as something that you have a personal investment in and you want to protect that investment then you need to make sure that you purchase more than an ACV policy.  Otherwise, your investment is at the mercy of free market; and the free market will almost always determine that your motorcycle is worth less than you think it is. 

If you have any further questions or comments concerning this article or any other matters concerning your rights as a motorcyclist please contact us at 1-800-321-8968 or at matt@motorcyclelawgroup.com.

The preceding is for informational purposes only and should not be considered legal advice. The laws governing the above may be different in your state.
 

I am frequently asked by riders what to do if they are stopped for wearing an "illegal helmet." By illegal they always mean that the helmet is not DOT certified. My answer is always the same. Your helmet is perfectly legal in Virginia.

However, before I explain why your helmet is perfectly legal, let me say that this is not an article taking one side or the other on the great helmet debate that rages throughout the motorcycling community. Motorcyclists differ in their opinions on which type of helmet a rider should wear, and even whether or not a motorcyclist should be able to ride without a helmet at all. This article is not meant to take a position with regard to either of those debates. It is merely an attempt to clarify the applicable law in Virginia as it pertains to helmets so that each rider can make their own decision, and so that if you are stopped and ticketed for an illegal (or more often improper) helmet, you will be armed with the information to avoid paying a ticket for a violation that you did not commit.

Section 46.2-910 of the Code of Virginia requires that every operator and passenger on a motorcycle being operated on the highways of Virginia (highways includes all areas open to the public for motor vehicle travel) must wear a protective helmet. The helmet must meet or exceed any one of three helmet standards; 1) Department of Transportation (DOT), 2) Snell Memorial Foundation, or 3) The American National Standards Institute (ANSI). That's it. That is the totality of the requirements for a motorcycle helmet to meet Virginia code. Notice that the statute says that the helmet must meet or exceed any one of those standards. It does not say it must be approved by any of those entities, nor does the statute require that the helmet be marked, labeled, or certified by any of those entities. Therefore, the mere fact that your helmet does not have a sticker on it does not render it illegal, nor does it give an officer the right to pull you over or ticket you. However, if one does, do not argue, be polite and take the ticket. This is a battle to fight in court, not on the side of the road.

In order to be convicted of a helmet offense (short of not wearing one at all) the state is going to have to show that your helmet does not meet or exceed each of the above standards, which differ from one another. That means that the officer will have to know and understand each of the above standards. That is not going to happen. The standards are performance standards; they are not a guideline on how to build a helmet. The DOT and Snell standards can be obtained online, however, I cannot find anyone who has been able to find the ANSI standards. Even if they could, they are performance standards as well. What that means is that the state cannot prove its case. Often an officer will testify that he could tell that the helmet is illegal due to the weight of the helmet or the thickness of the liner. However, none of the three applicable standards dictate any certain weight for the helmet, nor do they require any particular thickness for the lining. They are silent on those issues. The standards focus on how the helmet distributes the force of an impact. There is only one way to determine that, and that is to have the helmet tested. There are three problems with that. The first is that there are no testing facilities in the Commonwealth of Virginia. The second is that the procedure necessitates destroying the helmet. The third is that the police do not have the right to take the helmet for testing in the first place without probable cause that it does not meet any of those three standards. Unless they know and understand those standards, the requisite probable cause does not exist.

In short, section 46.2-910 of the Code of Virginia is a very vague statute when it comes to mandating the types of helmets which may be worn in Virginia. In fact, two jurisdictions in Virginia, Rockingham County and the City of Newport News, have declared 46.2-910 so vague that it is unconstitutional in terms of enforcing any type of helmet which may be worn. We are expecting a third jurisdiction, Radford, to give an opinion on the matter within a month.

So the next time someone suggests that your helmet is illegal because it is not DOT certified, point them to Section 46.2-910. You could also point to the fact that their helmet is not DOT certified either given the fact that DOT does not certify helmets, but that is an issue we can tackle in the future. Once again let me say that I am not advocating any particular helmet. I am advocating knowing the laws of your state and what your rights are as a Virginia Motorcyclist.

If you have any further questions or comments concerning this article or any other matters concerning your rights as a motorcyclist in Virginia, please contact me at 1-800-321-8968 or at matt@tommcgrathlaw.com

The preceding is for informational purposes only and should not be considered legal advice. The laws governing the above may be different in your state.

Every January when the Virginia General Assembly meets, motorcyclists around the state begin talking about the laws being considered that affect motorcyclists in Virginia. For many, that means the dreaded helmet statute. On this issue, motorcyclists are deeply divided. Many firmly believe that they should have the right to choose for themselves whether or not to wear a helmet. Others firmly believe that it is an important law that needs to remain in effect. Many helmet law opponents view those who wish the law to stay in place as nannies that are violating their right to choose, while helmet law supporters look at the other side as reckless and irresponsible. However both sides share a common misconception that is shared by many members of the General Assembly and the public at large; and that is that the term motorcyclist's rights is a euphemism for helmet reform. For that reason many motorcyclists do not become involved in legislative efforts to better motorcycling. For helmet reform supporters, they fail to get involved due to being discouraged over years of perceived failure. For helmet law supporters, their failure to become involved is due to their desire to see the law remain in place. Both sides are wrong. The fight for the rights of motorcyclists is about much more than helmets, and in Virginia, it is an ongoing fight that is that has seen some disappointments, but has also seen many victories that have benefited all motorcyclists in the commonwealth.

Over the years, the Virginia Coalition of Motorcyclists, with the help of other motorcyclist's rights organizations, motorcycle clubs, and individual motorcyclists, have facilitated significant changes to laws affecting motorcycling in Virginia. None of these changes have had a thing to do with helmets. Among these accomplishments are the following:

 

• Opening up the HOV lanes to motorcycles.
• Mandating the marking of steel plates which are used in roadway construction and constitute a danger to motorcyclists who are unaware of them until they find themselves on a wet piece of steel
• Changing the statute governing motorcycle learners permits to make it comparable to that of automobile drivers.
• Gaining funding for the Virginia Rider Training Program
• The establishment of a motorcycle seat (currently held by Tom McGrath) on the Commonwealth Transportation Safety Board
• Assisted in the establishment of the Governors Motorcycle Advisory Counsel
• Eliminating the handlebar height restriction
• Promulgating Section 33.1-13.1 of the Code of Virginia which prohibits the imposition of any requirement of which restricts the access of motorcycles and motorcyclists to any highway, bridge, tunnel, or other transportation facility.
• Adding motorcycle awareness to the high school drivers education curriculum
• Amending state code to allow motorcyclists to use headsets for communication purposes.
• Successfully eliminating numerous proposed pieces of legislation which would have been detrimental to Virginia motorcyclists

These are but a few of the accomplishments in the Virginia motorcyclist's rights front. Every motorcyclist in Virginia has benefited from these accomplishments regardless of their stance on helmets. However, none of these would have been possible without the help of individual riders who were willing to roll up their sleeves for the betterment of Virginia motorcycling.

I would invite every motorcyclist to become involved in protecting our chosen sport, activity, passion, or any other word you may use to describe your own two wheeled addiction. Spend a day pounding yard signs for candidates who share your views on the subject or become involved in a SMRO (State Motorcycle Right Organization). There are numerous ways to become involved, as there are numerous excuses not to. However, one excuse that does not fly is that motorcyclist's rights means helmet reform. In Virginia it has never been just about helmets and it never will be. It is about protecting our rights, and improving motorcycling for our enjoyment, and for the enjoyment of those down the road.

If you have any further questions or comments concerning this article or any other matters concerning your rights as a motorcyclist in Virginia, please contact me at 1-800-321-8968 or at matt@tommcgrathlaw.com
 

As many of you know, my firm represents motorcyclists who have been injured in accidents throughout Virginia and the Carolinas. It is a privilege and honor to help motorcyclists who are in need of help during a stressful period in their lives. The matters that need to be addressed after an accident can be overwhelming for most people. You have to deal with another person's insurance company. You have to deal with your insurance company. You probably have to deal with hospitals and your own health insurance company who may be coming after you for outstanding bills or for reimbursement for what was paid out on your behalf. A personal injury claim is filled with difficulties. However, all of the matters previously mentioned can be successfully handled. What is truly difficult to deal with are the obstacles created unintentionally by the motorcyclist. It is very easy to say or do something at the scene of an accident or at the emergency room that will effect the value or viability of any claim you may have against the other driver.

For the past several years, motorcyclists across the country have been hearing about motorcycle only checkpoints. Let me now go on record as being vehemently opposed to such checkpoints as I believe that they serve no purpose. Motorcycle only checkpoints are checkpoints where only motorcycles are stopped in order to check for operating licenses, safety equipment, etc. In New York, motorcyclists have challenged the legality of such checkpoints due to the method in which they are being conducted (we will come back to New York later in this article). Georgia has announced that they will begin conducting motorcycle only checkpoints in March to coincide with Daytona Bike week.

As always if you have any questions or comments concerning this article or any other matters of interest to motorcyclists, please feel free to contact me.