TexasCHLforum.com

MeMelYup wrote:There was an accident, you don't drive away from an accident you are involved in. That would be hit n run. That makes you in the wrong.

I would disagree. This was also a violent altercation, which takes precedence over the accident. Drive away 'til safe, and be sure to call 911.

I think this is it. In all the forum-lawyering that goes on here, I have never seen this brought out (possibly I just missed it), so for the general education of all:

Penal Code Chapter 2, Burden of Proof

Sec. 2.02. EXCEPTION. (a) An exception to an offense in this code is so labeled by the phrase: "It is an exception to the application of . . . ."(b) The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.(c) This section does not affect exceptions applicable to offenses enacted prior to the effective date of this code.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 2.03. DEFENSE. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.

baldeagle wrote:
The threat of force is justified in 9:04. It does not say a defense to prosecution. It says justified.
... Personally, if an officer did that to me, I would sue the department for false arrest as soon as the case is settled in my favor. And I'm pretty sure I would win. And retire.

A little forum lawyering here:

It was pointed out in a thread over on Texas Gun Talk (discussing Matefro's arrest at the Capitol building for carrying a long knife while CHL'ing), that in the Texas Penal Code, unless a "get out of jail free card" is labeled an "exception" with very specific language, then it is treated as a defense to prosecution, regardless of how it is labeled (non-applicable, justification, etc). I don't have it at my fingers, tho, I will try to look it up later. Very important thing to know when reading the law, I think.

Thus you can be lawfully arrested for the general offense, make your case in court that it doesn't really apply to you, and if you convince the court...try to sue the officer if you want because everyone can sue, but very unlikey it will go anywhere. It has to be pretty egregious for an officer to be successfull sued for false arrest, and I don't thing "defense to prosecution" will make it.


A point of view from one of the four-wheel vehicle community on the eternal war between motorcycles and muliple-wheelers:
While it is entirely possible that the OP forgot to include that he was dealing with an accidental crotch fire because he dropped his match while trying to light his stogie while texting his vote into American Idol that he was watching on his iPhone and failed to notice that he veered across six lanes of traffic occupied by motorcycles, I think it is just as likely that the motorcyclist in this case was simply outraged that someone was in the way of his faster, more agile, less protective conveyance when he tried to execute some maneuver that seemed like a good idea to him but perhaps un-noticed by the OP. (Man that's a heckuva sentence).

I tend the think the mind set that says it is a good idea to pound on people's windows at a stop light and throw off all your gear for fight might be the same mindset that says it is a good idea to exceed speed limits by a wide margin, thread-the-needle between vehicles, accelerate and slow at rates unmatched by autos, ride the bumper so one can suddenly pass on the inside of a double-yellow curve, etc. Just my prejudice, perhaps.

I rode a bike myself when younger, and I know people in cars often simply don't see motorcycles (or don't care). But I also know that some motorcyclists, while enjoying the quickness and agility of their machines, put themselves in positions to be "assaulted" by cars, trucks, curb, guardrails, trees, telephone poles, or long pieces of road and berm (I did that once. Once). As a firefighter/medical first responder, I have treated a few biker accidents, and none of them were "cut off" by anyone, they just allowed their bikes to exceed their capabilities as drivers.



As to the actual incident itself -- it might have been tactically wiser to simply drive away when Mr. Motorcycle went into fight-mode, I think the OP was overall justified in handling it the way he did, and glad it came out well for him.

The suggestion to drive to a police station when some knothead is harrassing you is a good one. My Garmin GPS will guide me to the nearest police, fire, or hospital with a couple touches, if you have a GPS that is function you may wish to learn how to use quickly.