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Legally Speaking - with Bob Mionske: When is a bicycle more than a bicycle
Dear Bob;
I have a question that has been a long standing debate over many beers at the pub, and every one seems to agree I am wrong except me. If you could set me straight I would be grateful. This is a true story. Like most cyclists I have my regular routes, designed for hills, speed, one hour, three hours etc. Part of my ride consists of a road with two lanes in each direction (four lanes total) with a posted speed limit of twenty-five (25) miles per hour. Both sides of the road are filled with small shops with parking lots. The surface is new and smooth and slopes gently down at about a 1-percent grade. So here I am flying down the road at 25+ miles an hour (too fast to take my eyes off the road and look to confirm) and as is so often the case, a car up ahead begins to slow for a right hand turn into one of the parking lots. I look to my left, see a hundred meter gap, signal, and move into the left lane. Because of the flow of traffic I take it up a notch and begin passing the vehicles on my right. The car has finished its move and we are all cruising along. I am feeling good so I decide to see what I have in me and stay with traffic in the left hand lane for the next half mile or so. While enjoying passing vehicles going slower on my right, one turns out to be a police motorcycle that proceeds to join me in the same lane. We are now riding two abreast in the left lane, as he yells at me to move over. No lights, no siren. I make the next left turn and he pulls up beside me and gets out his ticket book.
"A bicycle is required to ride to the farthest right hand side of the road," he says.
"Not while they maintain the flow of traffic," I reply.
That in essence is my question. I argued that if I run a stop sign, I get a ticket, which is applied to my driver's record. If I ride my bicycle after too many beers, I receive a DUI, which affects my insurance rates of my car. If I speed, I would be held accountable BECAUSE A BICYCLE IS A VEHICLE! As a vehicle I am legally entitled to use the road ways as they are designed. I am not speeding, I am not impeding traffic, I am not tailgating, and I am within my legal rights.
If you want to know how the story ended, I got out of it. When the officer started to write me a ticket, and explain how this would all go against my driving record I started to laugh. You see, I have no driving record. As an epileptic, I don't have a license. You have nothing to 'take away' from me. May gas go to $10.00 a gallon! If I am wrong, please let me know. The local bartender has a list of all the people I owe beers to. If I am right, let me know so I can put this to rest. All I get is to keep my dignity. Also, because so many seem to think I am wrong, I figure it is probably not 'the right thing to do', regardless of the law. Sometimes you should listen to other people. Sometimes what is legal just isn't right. Ride safe, live long.
D. D.
California
Dear D.D.;
How many beers do they owe you, D.D.? Because you don’t want to get cited for Bicycling Under the Influence when you’re riding home from the pub. Now before you head over to the pub, let’s find out why you’re right and everybody else is wrong.
In California, the operation of a bicycle on the roadway is governed by Section 21202 of the Vehicle Code, which states that “Any person operating a bicycle upon a roadway at a speed less than the normal speed of traffic moving in the same direction at that time shall ride as close as is practicable to the right-hand curb or edge of the roadway except under any of the following situations”:When overtaking and passing another vehicle proceeding in the same direction. When preparing for a left turn at an intersection or into a private road or driveway. When reasonably necessary to avoid conditions (including, but not limited to, fixed or moving objects, vehicles, bicycles, pedestrians, animals, surface hazards, or substandard width lanes) that make it unsafe to continue along the right-hand curb or edge, [subject to the requirement to turn out when five or more faster-moving vehicles are following in line]. For purposes of this section, a “substandard width lane” is a lane that is too narrow for a bicycle and a vehicle to travel safely side by side within the lane. When approaching a place where a right turn is authorized. Any person operating a bicycle upon a roadway of a highway, which highway carries traffic in one direction only and has two or more marked traffic lanes, may ride as near the left-hand curb or edge of that roadway as practicable.” Before we get to what this means, we’ll need to take a look at one additional requirement in California; Section 21208 requires that “Whenever a bicycle lane has been established on a roadway pursuant to [the law], any person operating a bicycle upon the roadway at a speed less than the normal speed of traffic moving in the same direction at the same time shall ride within the bicycle lane, except that the person may move out of the lane under any of the following situations:”When overtaking and passing another bicycle, vehicle, or pedestrian within the lane or about to enter the lane if the overtaking and passing cannot be done safely within the lane. When preparing for a left turn at an intersection or into a private road or driveway. When reasonably necessary to leave the bicycle lane to avoid debris or other hazardous conditions.When approaching a place where a right turn is authorized. now let’s sort out what the law requires. In California, if you are traveling at “the normal speed” of traffic moving in the same direction at that time, you may ride in any lane that is legally available to other vehicles. As you already know, this means that you are right, and the police officer and all your friends at the pub are wrong.
Now, if you’re riding at a slower speed than “the normal speed” of traffic moving in the same direction at that time, the law generally requires you to ride “as close as is practicable” to the right-hand curb or edge of the roadway. Let’s talk about these two concepts for a moment. First, there’s nothing in the statute or in case law that defines what is meant by “normal speed.” However, I think it’s safe to say that the term refers to the speed of traffic at that time, rather than the posted speed limit. This means that if you are able to ride at the speed at which traffic is moving, it is legal for you to ride in any lane.
Second, if you must ride to the right, the law requires that you “ride as close as is practicable to the right-hand curb or edge of the roadway.” By “as close as is practicable,” the legislature means as close as is feasible; of course, that raises the question, what does “feasible” mean? Basically, it means that if you’re riding at a slower speed than the traffic at that time, you’re expected to ride as close to the right as is reasonably capable of being accomplished under the conditions. Now, according to the police officer, "a bicycle is required to ride to the farthest right hand side of the road.” So he’s wrong on two counts, because “practicable” does not mean “to the farthest.”
Now let’s discuss bike lanes. If a bike lane has been established on the roadway, you’re generally required to ride within the bike lane if you’re riding at a slower speed than “the normal speed” of traffic moving in the same direction at that time. If you are traveling at the same speed as the normal speed of traffic at that time, there is no requirement to use the bike lane.
There’s another point to consider in these requirements to ride to the right or to use a bike lane: each of these requirements has exceptions which make it legal to ride in the lane under certain conditions, even if you are riding at less than the normal speed of traffic at that time. If you fall within one of these exceptions, you are entitled to ride within the lane for as long as the exception exists.
Now let’s go back to what the police officer told you as he was writing the citation: that the violation would go against your driving record (let’s ignore for now the fact that you don’t actually have a driving record). The officer is getting ahead of himself here. First, before any violation can go against your driving record, you have to be convicted of the violation. When the officer writes a ticket, you haven’t been convicted of anything; you’re merely promising to appear in court to answer the charges against you. In order to be convicted, you will either have to plead guilty, or the officer will have to appear in court to testify against you, and the court will have to find that you violated the statute that you’re being ticketed for.
Okay, now that we’ve sorted that little procedural issue out, let’s look at what would have happened had you been ticketed on a charge of failure to ride to the right. You would need to contest the ticket, and enter a “not guilty” plea at your appearance. If the police officer had failed to show at your appearance, your case would be dismissed. If the police officer does show at your appearance, he would be required to testify in support of the charge. This is where it gets interesting, because as you already know, the police officer doesn’t understand the law. Your job as defendant would be to establish two things: First, you would want the police officer to testify that you were riding at the same speed as traffic. Second, you would want to establish through your testimony that the statute does not require you to ride to the right when you are riding at the same speed as traffic; to do this, you would want to bring a copy of the relevant statute to read into evidence. If you can establish those two points, it’s an open and shut case, and the charge against you would be dismissed.
One more point about the citation going against your driving record. Generally, citations you receive will be infractions, and therefore will not generate “points” against your driver’s license, although they will be a part of your driving record. Even a DUI, which would be a misdemeanor if you’re driving a motor vehicle, is only an infraction on your bicycle. Although having citations on your driving record doesn’t really affect you personally, you should be aware that under Section 40000.28 of the Vehicle Code, if you’ve been convicted of three infractions within a twelve month period, the next conviction on a traffic violation will be for a misdemeanor, rather than an infraction. And that will go onto a different record—your criminal record—and carries a maximum penalty of a $1,000 fine and six months in jail. So be careful that you don’t collect too many tickets.
Okay, NOW you can go to the pub. And be careful on the way home!
Good luck,
Bob
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).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.
