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Legally Speaking - with Bob Mionske: The lawful (?) order
Dear Readers;It’s been a beautiful autumn here lately; blue skies, sunny days, the leaves turning beautiful hues of yellow, orange, and red before falling. The leaves haven’t been alone in falling this autumn. In the past few weeks, we’ve lost too many cyclists to collisions with motorists. For example, there was Linda Cleapor, who collided with the rear of a truck on September 12 while on her morning commute. No charges were filed. A week later, Lloyd Clarke, was out for a ride on September 20 in Incline Village, Nevada, when a truck coming from the opposite direction turned left across his right of way and killed him. No charges were filed. October proved even more deadly for cyclists. On October 11, 19 year old cyclist and art student TraceySparling, was in the bike lane in Portland, Oregon, waiting for the light to change. When the light changed, the cement truck to her left turned across her right of way, killing her before she had even started under way. No charges were filed. A few days later, on October 16, cyclist JoseBarranco was killed in Dana Point, California, when a drunk driver lost control of her vehicle and hit him on the sidewalk, where he was riding home from work. Three days later, on October 19, cyclist Sarah Howard was in the bike lane in Meridian, Idaho, waiting for the light to change, when a driver lost control of her vehicle and careened into Sarah, killing her. On October 21, cyclists Lee Anne Barry and Tom Hoskins were hit by an SUV in Lancaster County, South Carolina, while riding to raise awareness of brain injuries. On October 22, a mere eleven days after Tracey Sparling’s death, Portland, Oregon was again stunned when cyclist Brett Jarolimek was killed by a garbage truck that turned right, across his right of way. Again, no charges were filed. I will be offering my thoughts on these incidents in a later column. I will also be discussing the two recent Portland fatalities in a guest column for Portland cyclist and web journalist Jonathan Maus’ site Bike Portland; that column should be published at the same time this column is published. For now, I would like to offer my condolences to the friends and families of these fallen cyclists, taken from us unjustly, and too soon. And for all of my readers, I would urge you to be particularly careful to observe both the law and safe cycling practices when you ride, first and foremost to prevent becoming another sobering reminder yourself, and to safeguard your rights if luck is not on your side.Last column, we had two questions from reader Jen Benepe, the publisher of New York Cycle Newsand president of Hotvelociti,who had two separate run-ins with mistaken law enforcement officers inthe space of few days. We discussed the incident in her first questionlast week; this week, we’re going to take a look at the incident her secondquestion:
I am about to take a left hand turn on a two lane road whichis fairly narrow. If I went all the way to the double yellow line, invariablysomeone from behind would come too close, plus I don't want to be hit fromthe other direction. I make a mistake and am one block (one block!) toosoon, meaning, I have to go two blocks with my hand out instead of onebefore I turn. I jump almost out of my skin when I hear behind me a loudspeakerblasting, "If you are going to take a left hand turn get out of the middleof the road," and something like "now move it," barked at me once again,this time from another equally ill-informed police officer from a differentmunicipality but in the same area.If I had been a car, he would never have dared say such a thing, andmoving back to the right would have endangered me unnecessarily. Plus Ibelieve I had the legal right to be there. Again, what is the law in thiscase, and how should I address his behavior?
Jen, it’s not clear which municipality this incident occurred in;therefore, it’s unclear what local laws, if any, apply. However under NewYork state law, while bicycles are not vehicles, cyclists are accordedall of the rights and are subject to all of the duties applicable to theoperators of vehicles. Assuming that no local law is applicable, understate law you were required to ride near the right-hand edge of the roadway,except under certain conditions, including when preparing to make a left-handturn. In this incident, you were preparing to make a left-hand turn; therefore,you were not required to ride near the right-hand edge of the roadway onceyou began preparing to make your turn.In fact, under New York state law, once you begin preparing to makeyour left-hand turn, you are required by law to be positioned in the lanenearest to the center line of the roadway. This is, in fact, exactly whereyou were riding when you were admonished by a law enforcement officer to“get out of the middle of the road.” In short, you were in complete compliancewith New York Vehicle & Traffic Law when the officer orderedyou to “get out of the middle of the road.”It’s unclear from the officer’s order from what road position he expectedyou to make your turn, and it’s equally unclear whether local law prohibitsyou from making a left turn as required by New York state law, or whetherthe officer is merely misinformed on what the law requires of cyclists,or doesn’t care what the law is, and is enforcing his own version of thetraffic laws. Now, regardless of your error in the choice of whichstreet to turn at, it is probably safe to say that the operator of a motorvehicle who prepares to make a left turn, and then realizes that an errorhas been made, is not in violation of the law by choosing to continue tothe next block before making the turn. Therefore, if motor vehicle operatorsare not required to make a left turn if they realize their error beforebeginning their turn, cyclists, being accorded the same rights, are alsonot required to make a left turn upon realizing their error. Instead, likemotor vehicle operators, they would be allowed to continue straight untilreaching the next block. One thing to keep in mind, however: if you havechanged your mind about turning, you may be required to resume riding nearthe right-hand edge of the road, depending on how far it is until yourturn.Another thing to keep in mind: It’s possible that local law prohibitscyclists from making left turns as required under New York law. If a lawprohibiting left turns by cyclists has been enacted by this municipality,the officer’s order to “get out of the middle of the road” would be a lawfulorder enforcing the law, and you would be required to comply with the locallaw, which likely would require you to use the crosswalks to make yourturn.On the other hand, if no local law prohibiting cyclists from makingleft turns has been enacted, the lawfulness of the officer’s order becomesquestionable. All vehicle operators are required to obey the law, and allvehicle operators are required to obey the lawful orders of law enforcementofficers. However, no order is lawful where it directs the operator ofa vehicle to violate the law. Thus, if the officer was directing you tomake a turn in a manner that is in violation of the law, the order is notlawful. However, if the officer was directing you to make a left turn incompliance with local law, then the order was lawful. In any event, theofficer did not direct you to make a turn as a pedestrian would. Therefore,assuming that local law does not require cyclists to make turns as pedestrianswould, the officer’s order to “get out of the middle of the road” probablydoes not amount to a lawful order, because he wasn’t directing you to makeyour turn as a pedestrian would—he was merely ordering you to abandon yourlegal right to the road.
On a penultimate note, I'd like to remind my readers that, as I'vementioned in my recent columns, I am currently planning a series of speakingengagements across the country in conjunction with the publication of mynew book, Bicycling& The Law. I am very close to finalizing some dates for thefirst leg of my tour this year, and will announce those dates and locationssoon. Then, beginning in 2008, I will begin an extended speaking tour acrossthe country. If you would like me to appear to speak at your event or shop,or to your club or group, please drop me a line at bookbob2speak@gmail.com.I'm looking forward to meeting as many of my readers as possible.Finally, I’d like to thank Sean Mellor and his co-hosts at BicycleRadio for hosting me on October 23. That show should be availablein the Bicycle Radio archives soon, for my readers who may have missedthe show.
Bob
(Research and drafting provided by Rick Bernardi-law student-Lewis and Clark)
Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad race.
After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).Mionske is also the author of Bicyclingand the Law, designed to be the primary resource for cycliststo consult when faced with a legal question. It provides readers with theknowledge to avoid many legal problems in the first place, and informsthem of their rights, their responsibilities, and what steps they can takeif they do encounter a legal problem.If you have a cycling-related legal question, please send it to mionskelaw@hotmail.comBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-accident advice can be found at www.bicyclelaw.com.Important notice:The information provided in the "Legally speaking"column is not legal advice. The information provided on this publicweb site is provided solely for the general interest of the visitors tothis web site. The information contained in the column applies to generalprinciples of American jurisprudence and may not reflect current legaldevelopments or statutory changes in the various jurisdictions and thereforeshould not be relied upon or interpreted as legal advice. Understand thatreading the information contained in this column does not mean youhave established an attorney-client relationship with attorney Bob Mionske.Readers of this column should not act upon any information contained inthe web site without first seeking the advice of legal counsel.
