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Legally Speaking - with Bob Mionske

Side by each

Published: Mar. 27, 2003

Dear Bob Mionske;
While riding a local canyon here in Salt Lake City, we were stopped by a police officer in a car who told us (two of us riding side by side) it is not legal to do so. I ask him why? Just because it is unsafe for us. We could be a hazard.

I also ask why then if we have the same right to the road as any motor vehicle can we not ride as our local police do on the motorcycles. Thank you,Kenny G
Salt Lake City, UT

Dear K.G.
To quote my old coach Eddie Borysewicz, you and your friend were riding “side by each.”

Before I answer your question, let me start with the general state of the law and work my way to your particular situation. Most states do not create their laws out of whole cloth. Instead, they adopt the recommended "best practice" model codes developed by non-profit organizations.

While a state is free to modify a model code as its legislature sees fit, most states do base their state laws on these models. The recommended code for traffic regulations is the Model Traffic Code (also called the Uniform Traffic Code). Because most traffic laws are enforced by city or county governments, the vast majority of states write a very complete set of traffic regulations and encourage their local governments to adopt them verbatim. This results in uniform traffic laws in every locality within a state.

The traffic law you refer to in your question has been in the Model Traffic Code for several years, with several minor revisions. The latest version reads:

A person operating a bicycle or device propelled by human power has all of the rights and is subject to all of the provisions of [this state's traffic code] applicable to the operator of any other vehicle, except as to special regulations in [this state's traffic code] and except as to provisions of [this state's traffic code] which, by their nature, can have no application.

Virtually everyone agrees that the intention of this section is to create a default presumption that bicycles should be treated as other users of the road, unless there is an overriding special provision or the application of the general traffic law would make no sense. However, whether a bicycle actually is a vehicle within the meaning of the ordinance has been the subject of considerable controversy. Many states still retain a definition of "vehicle" used in an older version of the Model Traffic Code that specifically exempted "devices moved solely by human power." Therefore, whether a bicycle is a vehicle or merely should be treated as if it were a vehicle varies from state to state depending on the specific wording of the law that state uses, the character of the regulation, and the context in which it is applied. A couple of examples will give an idea of how chaotic the situation is.

In California, a cyclist challenged a speeding ticket (49 mph in a 35 mph zone) on the basis that the provision of the traffic code stating that "no person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent" didn't apply to him, because he was not operating a vehicle. The court rejected this argument, stating:

"the clear legislative intent expressed in the law was to make bicycles subject to the same rules of the road as motor vehicles. To rule otherwise would inevitably frustrate the manifest purposes of the legislation as a whole and lead to absurd results."

On the other hand, an Ohio cyclist was ticketed for obstructing traffic while grinding up a steep hill at a speed both the cyclist and the police office agreed was about 15 mph. Ohio law stated that "no person shall stop or operate a vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic.”

The cyclist argued that he was not guilty of the infraction because he was going as fast as he could. The court agreed with him:

"it is clear that along the stretch of road in which Seltz was operating his bicycle, he was traveling at the maximum speed he could possibly operate his bicycle . . .holding the operator to have violated the slow speed statute would be tantamount to excluding operators of these vehicles from the public roadways, something this state has not clearly expressed an intention to do . . . We conclude that a bicyclist is not in violation of the ordinance when he is traveling as fast as he reasonably can.

This case was argued by attorney Steven M. Magas of Cincinnati, who persuaded the court not only to find Seltz not guilty, but also to clearly state in their decision that governments cannot use traffic enforcement as a pretext to effectively ban performance cycling.

The case is City of Trotwood v. Seltz, 746 N.E.2d. 235 (Ct. App. 2 Dist 2000). For the background of the case, read Steve’s article "The Seltz Case Revisited," at the Cincinnati Cycle Club's web site.

One area of particular controversy has been drunk cycling. An Illinois court ruled that the "all rights and duties" language didn't apply to the state's prohibition against drunk driving:

"We determine that the language of the relevant of the statutes is not sufficiently definitive to give the person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. In other words, there is no clear and express legislative intent to apply [the drunk driving statute] to bicycles."

Now, let's turn our attention to your particular situation. The definition of "vehicle" in the Utah Traffic Code does not exclude human powered vehicles, and section 41-6-84(1) incorporates the Model Traffic Code's "all rights and duties" provision.

Section 41-6-87 of the Utah Code states that cyclists

"may ride two abreast if such operation does not impede the normal and reasonable movement of traffic."

This language is also right out of the Model Traffic Code. In addition, section 41-6-87 adds that

"a cyclist traveling upon a roadway at less than the prevailing speed of traffic must ride as near to the right-hand edge of the roadway as is practible."

This language is also right out of the Model Traffic Code, and if it looks to you like these provisions contradict each other, I agree with you. My experience has been that many state departments of transportation and police departments believe that the "ride to the right" language trumps the "two abreast" language on all but the most rural, traffic-free roads.

(The typical argument is: "I was in my cop car. My cop car is traffic. Therefore, they shouldn't have been riding two abreast where I could have seen them from my car.") There are some exceptions, however.

For example, Wisconsin Statute 346.80(2)(a) subordinates the "ride to the right" language to the "side-by-side" language. In Wisconsin, as long as the cyclists are within a single lane, side-by-side is legal.

But in Utah, unlike the Ohio case discussed above, both the "two abreast" and "ride to the right" rules are in the same section of the state traffic code. Because police officers usually issue traffic citations by ordinance number, both provisions would probably apply. Also, the Utah code, unlike Wisconsin statutes, does not clearly say what is the law when the "ride to the right" and the "side-by-side" provisions clash. In the case of the Ohio cyclist, one of the three appeals court judges stated that had the police office cited the bicyclist for failure to ride to the right instead of impeding traffic, he should have been convicted.

By placing Utah's ride to the right, side-by-side riding, and impeding traffic provisions in the same section of the traffic code, they may have effectively foreclosed the same argument in your state.

In conclusion, I would predict that if the police officer had cited you, it would have been hard to beat the rap. Unfair laws are unlikely to change if no one challenges them, but when a statute is directly on point, the most effective way to change is probably through the legislature.Good luckBob(research assistance provided by Bruce Epperson-law student-Nova Southeast University)

(Research assistance provided by Bruce Epperson - a law student at Nova Southeast University)


Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 National Championship Road 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).If you have a cycling related legal question please send it to info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer on VeloNews.com. General bicycle 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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.