Dear Readers,
In my last column, we looked at an incident which a reader named Jeff had with a snow plow when he went out for a ride in the snow one night (see Attack of the abominable snow (plow) man). Some readers put the blame on that encounter on Jeff for riding in the way of the snow plow. In that column, I promised that this week we would look at some of his other encounters with a local police department. As you will see, he has quite a story to tell about law enforcement ignorance of the very laws officers are supposed to be enforcing. If we are going to maintain our right to the road it will take more cyclists like Jeff. Just as this country needs real patriots to stand up and defend our eroding civil rights, we need more cyclists to stand up for cyclist’s rights. I’m going to break his letter up into two parts, to make the issues easier to follow:

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Dear Bob,
I read with great interest your column regarding police and media bias against cyclists (see A fatal bias?). I have experienced this many times. It is almost more frustrating than experiencing all the idiot drivers who nearly kill me on the road. The police are supposed to know the law and enforce it fairly. When they don’t it leaves us (cyclists) no where else to turn. Except to you.

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I was recently told by a Sergeant and the Chief of the New Berlin police department that the substandard width lane statute in Wisconsin does not allow me to take more of a lane than would normally be practicable. I was told that I would be pulling into the lane of whatever car or truck was behind me, and that would give them no choice but to make an unsafe pass, since I “took their lane.” I argued that their other choice would be to wait until the pass could be made safely and legally.

The language in that statute seems pretty clear to me. I argued that if my bike is 18 inches wide, and the lane is, for example, 11 feet wide, and the passing vehicle is 8 or 9 feet wide, then there is no way for the vehicle to pass me within the lane and allow for the width of my bike, the width of the vehicle, and the 3 feet minimum distance dictated by the language in statute.

Dear Jeff,
Most states have a version of the Wisconsin law that requires cyclists to ride “as close as practicable to the right.” And as is typical of these statutes, there is an exception in the Wisconsin law that allows cyclists to disregard the requirement to ride “as close as practicable” to the right if the lane is a “substandard width lane”—which, according to the Wisconsin Legislature, is “a lane that is too narrow for a bicycle and a motor vehicle to travel safely side by side within the lane.” Your analysis that a lane must be wide enough to include your bike, the car, and a minimum of 3 feet for passing is exactly right (and let’s throw in a little extra space requirement to allow for the space between your bike and the curb, and between the car and the next lane.).

Now, according to the Police Chief, you are allowed to disregard the requirement to ride to the right when there is a substandard width lane—so far, so good—but you are not allowed to take more of the lane than is “practicable.” That’s where his understanding of the law takes a header. The law requires you to ride “as close as practicable” to the right, except under certain circumstances, including when you’re riding in a substandard width lane. There’s nothing in the law that requires you to take no more of the lane than is “practicable” when there’s a substandard width lane. If the lane is of substandard width, you are not required to ride to the right, period. You can take the entire lane, because to do otherwise would, by statutory definition, be unsafe. And as you pointed out, your taking the lane does not give motorists “no choice” but to make an unsafe pass. The Police Chief needs to bone up on the law.

Jeff continues:

In a separate incident in New Berlin, I was riding my bike on a 2 lane road with a speed limit of 40 mph. I was traveling between 35 and 40 mph. When I looked down at the computer, I was traveling 38.5 mph. I complained to the police department because I was passed by an SUV that came within 12 inches of hitting me. I was 2 to 3 feet left of the white line. The first officer I spoke with asked me if I was in the "bike lane". I told her that there was no bike lane and she said that the paved shoulder was a bike lane. I told her it was not and she told me that I should be riding there since it was paved. She implied that since I was on a bike I shouldn't have been where I was in the lane, that I had to be on the paved shoulder. I was told by the same Police Chief that I was still required to “ride as close as possible to the right side of the road.” I argued that, a) I was riding as close as I safely could to the right side of the road, given my speed. And b) that I could legally ride anywhere in the road since I was effectively riding the speed limit.

He told me that according to the minimum speed statute and the “ride to the right” statute, if I was not riding as close to the right as possible, that I would have to be traveling at exactly 40 mph. He also stated that if an officer saw me traveling 2-3 feet from the right edge of the road, and I was only traveling 38.5 mph, that the officer would ticket me for violating the minimum speed statute. He said that since almost everyone goes above the posted speed limit in that spot, that the “normal speed of traffic” as referenced in the “ride to the right” statute is actually greater than the posted speed limit and therefore the minimum speed in that area would also be the maximum speed. So in essence I was told that even though on the freeways in Wisconsin, the minimum speed is 45 mph, and the maximum speed is, in some cases 65 mph, that on all other roads the minimum speed is the maximum speed. I would argue that the statute refers to, “the normal and reasonable movement of traffic,” therefore, anything above the posted maximum would, by law, be unreasonable, and since, even on the freeway it is not unreasonable to travel 10 or even 20 mph below the posted maximum, that it would not be unreasonable to travel 1.5 mph or even 5 mph below the posted maximum, and use as much of the lane I need or like.

I would love to hear your thoughts on these situations. Perhaps the Police Chief in question will read your column and he will better understand cyclists’ rights on the road, and that they deserve to be protected just as motorists do.
Jeff

Jeff,
Let’s take a look at some of the Chief’s comments regarding your rights and responsibilities under the law—who knows after all, maybe he’s reading. First, to put this all in perspective, you were passed by an SUV with about 12 inches to spare. Under Wisconsin law, that pass is illegal, because Wisconsin requires drivers to leave a minimum of 3 feet between their vehicle and your bike when they pass. If there was evidence that would support a conviction, the driver should have been cited for that unsafe pass. So what did the police department do when presented with your complaint?

They shifted the blame for the driver’s illegal pass to you.

And given that the Police Chief thinks that motorists have “no choice” but to make unsafe passes when you are taking the lane, blaming you for the motorist’s unsafe pass falls right in with his line of “reasoning”—notwithstanding the fact that his line of reasoning is just plain wrong.

Let’s start with the response from the first officer you spoke with—she asked if you were riding in the bike lane, and then informed you that the paved shoulder is the bike lane, and that is where you should be riding. So far, she’s batting 0-2. I checked the New Berlin ordinances, as well as Wisconsin statutes, and there’s no state or local law that requires you to ride in a bike lane, nor is the paved shoulder a “bike lane” under state or local law. Furthermore, under New Berlin’s ordinance, you are explicitly allowed to ride in the right lane, regardless of your rate of speed. As a side commentary, I did note that in New Berlin, you are required to ride single file—an ordinance that is not consistent with state law, and therefore, under state law, an ordinance that has no legal effect.

Now let’s look at the Police Chief’s explanation of the requirement to ride to the right. According to the Police Chief, Wisconsin law requires you to ride “as close as possible” to the right. As any reader of Bicycling & the Law knows by now, that is not what the law requires—the law requires cyclists, under certain conditions, to ride “as close as practicable” to the right. As I explain in Bicycling & the Law, “possible” and “practicable” do not mean the same thing, and in fact, I warn cyclists to be alert to law enforcement efforts to substitute the word “possible” for “practicable.”

So, under Wisconsin law, you are required to ride “as close to the right as practicable”; however, there are some exceptions. You are not required to ride as close to the right as practicable when:

• Operating a bicycle at the “normal speed of traffic” at the time and place and under the conditions then existing;
• Overtaking and passing another vehicle proceeding in the same direction;
• When preparing for a left turn;
• When reasonably necessary to avoid unsafe conditions, including fixed or moving objects, parked or moving vehicles, pedestrians, animals, surface hazards or substandard width lanes that make it unsafe to ride along the right-hand edge or curb.

So, you were riding 2 to 3 feet left of the white line, when you were buzzed by an SUV. It’s not entirely clear from your letter, but it sounds like the white line might be very near to the right-hand edge of the road, and you did claim that 2 to 3 feet from the white line is as close to the right as practicable at the speed you were riding.

And at that speed—38.5 MPH on a 40 MPH road—you were, as you said, effectively riding the speed limit, which raises the question of whether you were even required to ride to the right. According to the Chief, you were required to ride “as close as possible” to the right, because you weren’t traveling at “exactly 40 MPH.” And furthermore, if you weren’t riding “as close as possible” to the right, and were doing 38.5 in a 40 zone, you would be ticketed for violating the minimum speed law.

Wow. My first thought, before even getting to the legal questions, is whether the Chief had also ordered his officers to ticket drivers who are driving 38.5 MPH in a 40 MPH zone, or if that policy only applies to cyclists? Because if he hasn’t issued that order to ticket drivers, his policy is blatantly anti-cyclist AND a violation of equal protection under both the U.S. and Wisconsin State Constitutions.

It’s also wrong on the law. For one thing, the minimum speed laws aren’t intended to apply to cyclists, they’re intended to apply to automobiles. At least, that’s how the Ohio Supreme Court saw things in Trotwood v. Selz. While the question hasn’t been litigated in Wisconsin, I think the Ohio court got the law right, and I believe the Wisconsin courts would agree. The appropriate citation, as the Ohio court explained in Trotwood v. Selz, is a citation for failure to ride as close as practicable to the right.

So why did the Chief threaten a citation for violating the minimum speed law? For one thing, he’s obviously mistaken on the laws he’s sworn to enforce. For another, he probably knows he’d lose in court on a citation for not riding as close as practicable to the right. First, you were doing 38.5 in a 40 zone, which, to everybody who isn’t an anti-cyclist Police Chief, means you were effectively riding the speed limit. That alone should convince a judge to find you not guilty. Second, you were riding 2 to 3 feet from the white line. If this was as close as practicable to the right, you should be able to win on that point as well. So what’s the Chief left with? Citing you for violating the minimum speed statute.

Only he’d probably lose in court on that citation as well. First, it’s not likely to be applicable to cyclists in Minnesota. Second, even if a trial court were to agree that the minimum speed law is applicable to cyclists, you can only be convicted of violating this statute if you are impeding the “normal and reasonable” movement of traffic. This means that the speed of traffic must be both “normal” and “reasonable” in order to support a conviction. And under Minnesota’s basic speed law, a “reasonable” speed is one that is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing. The speed of a vehicle shall be so controlled as may be necessary to avoid colliding with any object, person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and using due care.

Furthermore, the basic speed law requires reduced speeds under certain conditions, including “when special hazards exist with regard to other traffic.” In other words, if a car is traveling at a rate of speed that exposes you to the risk of a collision, that speed is unreasonable. Finally, any speed above the posted speed limit is in violation of the basic speed law, and therefore, unreasonable.

And yet the Police Chief says that “almost everyone goes above the posted speed limit in that spot”—a tacit admission that he’s not enforcing the speed limits for motorists, even while he’s adamantly maintaining that he will vigorously enforce them against cyclists for the most minor of deviations from the posted speed. The fact that “almost everyone” is driving at an unreasonable speed, apparently with the blessing of the police department, does not make you the scofflaw for riding 1.5 MPH below the speed limit. If you were cited for violating the minimum speed law, the officer would have to prove that you were impeding the “normal” and “reasonable” speed of traffic—an impossible task for the officer when “almost everyone” is driving at an unreasonable speed.

One more point about impeding traffic—under Wisconsin law, a cyclist is also a part of “traffic.” Therefore, the speed of cyclists must also be taken into account when determining the “normal and reasonable movement of traffic”—a point that would nullify any attempt to cite a cyclist for “impeding traffic.” All of this is resolved, however, by the legal analysis from the Ohio Supreme Court that simply says that the minimum speed law is not applicable to cyclists, while the ride to the right law is applicable.

Since you wrote me, Jeff, you’ve informed me of some recent developments that I’d also like to share. Last week, I wrote that you found the silver lining in your encounter with the abominable snow (plow) man, because it turned out to be winter/snow ride you’ve done. Well, you managed to find the silver lining with the New Berlin police department as well:

I should let you know that although I still think that Chief and I still disagree about that and a few other things, I've been talking to a Lieutenant from that department and we will be working together on a public access cable show about bike safety. Also the Chief said he will look into the possibility of getting signs on a few bike routes that remind motorists of the 3 foot passing rule. I'm always trying for some kind of positive outcome.

That’s exactly what we all need to do, Jeff—accept the challenge of these encounters we all face as opportunities to create positive change.
Bob

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My thanks to everybody who has contacted me to request my appearance at their event on my upcoming speaking tour. I will be speaking extensively this year, beginning in February, and will make plans to appear before any club, bike shop, or other engagement that is interested in hosting me. As promised previously, throughout the year, I will be announcing my speaking appearances in this space. Confirmed events for 2008 include the following:

• Evanston, Illinois February 28, 2008: Turin Bicycle
• Battle Creek, Michigan February 29, 2008: Team Active
• Philadelphia, Pennsylvania March 1, 2008: SRAM’s Redbowl (benefit for the Bicycle Coalition of Greater Philadelphia)
• Winchester, Virginia March 3, 2008: Winchester Wheelmen
• Washington, D.C. March 5, 2008: League of American Bicyclists National Bike Summit
• Washington, D.C. Date To Be Announced: Sonoma Restaurant
• Pittsburgh, Pennsylvania March 7, 2008: Trek of Pittsburgh

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 in the coming year.
Bob

(Research and drafting provided by Rick Bernardi, J.D.)

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Now read the fine print:
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).

Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.

If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. 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.