Is a Bikelane part of the Roadway?

Is a bike lane part of the roadway?

Briefly, the accepted answer in Arizona as well as everywhere in the United States except OR, is simply ‘yes’. What follows is a possibly interesting counter-point…

Borromeo V. Shea ( to read full case, search LegalWA.org, supreme court decisions fo: Borromeo v. Shea) affirmed that the bike lane was indeed part of the roadway in the State of Washington. Washington’s definition of roadway is virtually identical to Arizona:

(WA) RCW 46.04.500 “Roadway” means that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the sidewalk or shoulder even though such sidewalk or shoulder is used by persons riding bicycles.

(AZ) §28-601(21) “Roadway” means that portion of a highway that is improved, designed or ordinarily used for vehicular travel, exclusive of the berm or shoulder…

The definition of vehicle, though, is completely different — in WA bikes are explicitly defined as vehicles, and in AZ they are explicitly excluded from being vehicles:

(Wash) RCW 46.04.670 “Vehicle” includes every device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway, including bicycles

(AZ) §28-101 “Vehicle” means a device in, on or by which a person or property is or may be transported or drawn on a public highway, excluding devices moved by human power…

The Washington Supreme Court reasoned from the plain meaning of their statutes that bike lanes are part of the roadway.

So, what about Arizona?

In Arizona, on the other hand, bicycles are clearly not vehicles and so bike lanes are clearly not “designed or ordinarily used for vehicular travel” — vehicles are banned from them! [§28-815(D) ]. Thus the “plain meaning” of Arizona’s statutes indicate that bike lanes are not part of the roadway.

However, case law from the Arizona Court of Appeals found in Rosenthal v. County of Pima that a bicyclist in a bike lane was required to follow the rules of the road (in this case, required to ride in the direction of traffic). The case seems pretty straightforward. I note that the definition of “roadway” or “vehicle” doesn’t even appear in the opinion (perhaps that is a shortcoming of the case as brought?):

(appellee’s argument that, which the trial judge agreed with) those who ride in bike paths, because they are not roadways, are not (subject to the rules of the road). The argument both defies logic and is contrary to the express statutory language of A.R.S. §§ 28-728 and 28-811.

164 Ariz. 98; 791 P.2d 365; 1990 Ariz. App. LEXIS 140; 58 Ariz. Adv. Rep. 88

The twist here is that since the bicyclist was a minor, the  applicability statute cited was §28-811 , and §28-812 was not considered (also see Applicability Statutes – why are there two?). Confusingly, both say when and which statutes apply to bicyclists; 811 says that “this chapter [chapter 3 - Traffic and Vehicle Regulation] applies to a bicycle when it is operated on a highway or on a path“, whereas 812 says the rules, chapters 3, 4 and 5, apply to a “person riding a bicycle on a roadway or on a shoulder” [this confusion is explained in applicability-statutes-why-are-there-two; and seems settled based on Arizona v. Baggett]

In any event, Rosenthal doesn’t shed any light on whether or not a bikelane is part of the roadway. Thus the “plain meaning” of Arizona’s statutes stands: bike lanes are not part of the roadway. This is not in conflict with Rosenthal, it just means that the appellee’s argument was mis-constructed from the beginning. They were apparently counting solely on 28-811, overlooking (presumably because it wasn’t helpful to the case) 28-812 entirely.

Would the outcome have been different had the cyclist not been a minor? I would think not — since the rider was definitely either “on a roadway” or “adjoining a roadway”, then 28-728 would definitely be applicable. Or another way to say it, is that it still wouldn’t matter whether or not a bike lane is or is not part of the roadway.

Tucson Bike Lane

This occurs to me later: Tucson had almost no bike lanes. They are often incorrectly called bike lanes; they are also referred to under various made-up terms like “bike shoulder”. But they are not bike lanes.

Would this matter to the case at hand? The opinion refers to a couple of times “bike lane” and other times as a “path”. But again, this doesn’t seem to have made a difference. It’s just sloppy terminology. Most likely, the collision occurred on a SHOULDER.

15 thoughts on “Is a Bikelane part of the Roadway?”

  1. In Arizona what is the definition of a “bicycle path or lane” and what are the required markings?

    – Hi Dick. There is no definition explicitly in A.R.S. for those terms, however the MUTCD is incorporated by reference (28-641). So see Part 9 of the MUTCD

    And also, I need to update this article — there is some case law from Pima Superior Court that refers to this issue (I need to dig up that reference.)

  2. ARS 28-751 says that for driver of a vehicle intending to turn right, “Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway (http://www.azleg.gov/ars/28/00751.htm).” This means that, if a bike lane is present, then a motorist should merge into that bike lane in advance of turning, correct? So, in this situation, isn’t the bike lane part of the roadway? Refer to drawing here http://www.cyclistview.com/inclusivepdintro/slide05.htm for clarification (I think CA law similar to AZ, e.g. a shoulder is not part of roadway).

  3. Hi there,

    I find this discussion particularly intriguing, since I’m in alleged violation of this statute. I live in Tucson, and I’m a motorcyclist. A few weeks ago, I was cited for using the bike lane, but I was intending to turn right. The only caveat was that the intended street I planned to turn into was about a hundred feet away. Since traffic was dense and not moving, I proceeded to use the bike lane with intent of turning right, and got cited with ARS 28-815D. I intend to fight it using the statutes discussed in this article.

    My only question is this: how far is a “reasonably practical distance” (ARS 28-751) in using the bike lane (part of roadway) to turn right intentionally from it?

    Thanks a bunch,
    C. Wilson

  4. The MUTCD defines “Bicycle Lane-a portion of a roadway that has been designated by signs and pavement markings for preferential or exclusive use by bicyclists”, see part 9a, definitions [italics added].

    Also, Section 9C.04 Markings For Bicycle Lanes Guidance:
    Longitudinal pavement markings should be used to define bicycle lanes.
    Support:
    Pavement markings designate that portion of the roadway for preferential use
    by bicyclists. Markings inform all road users of the restricted nature of
    the bicycle lane” [italics added]

    See The MUTCD and A.R.S. for background on why this matters.

  5. Sir,
    I received a call this morning from a gentelman saying that he was “slapped in the face” by a weeping willow type tree branch hanging over my sidewalk. I severely trimmed the tree so there is no side walk overhang.

    My question is are bikes supposed to be ridden on sidewalks if they abut a perfectly good residential street in a gated retirement comunnity?
    Peace,
    Mark

  6. —– Forwarded Message —–
    From: Dan Gutierrez
    To: LCI
    Sent: Saturday, October 22, 2011 10:15 AM
    Subject: [LCI Group] Parsing FTR law logic in states with NO explicit MBL law

    To all,
    A straight English parsing of the logic of laws that are constructed as conditional restrictions with exceptions, as is the case with FTR laws and other bicyclist specific restrictions like MBL and MSU laws (FTR = Far To Right, MBL = Mandatory Bike Lane, MSU = Mandatory Shoulder Use, and please read this American Bicyclist article for more details: http://www.bikeleague.org/images/equality_article_nov-dec_07.pdf ), as applied to the Texas FTR law that is being discussed (which is interesting because it has an unusual logical structure in its 4th exception which bounds the exception as others have noted) still has the drawback that it serves as a de-facto MBL law because Texas has no explicit MBL law. This situation has nothing to do with the particualr structure of the 4th exception in the Texas FTR law!

    **************************************
    Conclusion: In states with a far to right (FTR) law and no mandatory bike lane (MBL) law, the FTR restriction applies to bike lanes because bike lanes are part of the roadway, and thus the FTR law serves as a de-facto MBL law that is potentially more restrictive than an explicit de-jure MBL law.
    **************************************

    Why potentially more restrictive?

    The road edge restriction in the FTR law applies to the roadway, so in any state with a FTR law and no MBL law, if there is a bike lane, which is part of the roadway, then a bicyclist is still required to ride per the restriction, which often reads “as close as practicable to the curb or edge of the roadway”, which is probably moot for a cyclist operating in a narrow (5’) bike lane (especially if it has a two foot gutter), since the cyclist anywhere in the bike lane is likely as close as practicable to the curb or edge, But what about a wider bike lane? If the bike lane is say 8 feet wide, is a lone cyclist (to avoid two-abreast law complications) riding 6 feet from the curb when none of the other exceptions apply, riding as close as practicable to the curb or edge? Depending on how the police and courts want to apply it, the TX FTR law could serve as a greater restriction than an explicit MBL law.

    In a state with an explicit mandatory bike lane use provision, such provisions only require a cyclist ride within the bike lane, thus taking precedence over the more restrictive wording of general FTR law. Note: One principle of law, particularly traffic law, is that more specific laws take precedence over less specific laws, so a MBL which is bike lane specific, takes precedence over a more general roadway positioning laws like a FTR law.

    If OTOH, bike lanes were defined like shoulders, as non-roadway parts of the highway (which is only true in Oregon, but they have a MBL law that requires bike lane use anyway), and there is no MBL law, then the FTR law would NOT serve as a de-facto MBL law, and the bike lanes would be optional, like shoulders are in most US states.

    – Dan “Alpha Wolf” Gutierrez -

  7. In the beginning of the post above the following statement was made: “In Arizona, on the other hand, bicycles are clearly not vehicles and so bike lanes are clearly not “designed or ordinarily used for vehicular travel” — vehicles are banned from them! [§28-815(D) ]. Thus the “plain meaning” of Arizona’s statutes indicate that bike lanes are not part of the roadway.”

    I disagree. The plain meaning of vehicular travel is the requiremnt of the operator to follow normal driver (AKA vehicluar) rules. What matters is not so much the conveyance as the rules the operator must follow, and since bicyclists have the rights and duties of drivers, they are engaging in “vehicular travel” when operating in preferential use roadways lanes, such as bike lanes, which are a part of the roadway in the MUTCD and the laws of every state in the US, except Oregon.

    It is interesting that AZ has done a poor job of defining a bicycle lane as part of the roadway in the vehicle code, and does a similarly poor job of making it clear that when vehicle drivers must only entr bike lanes to cross them or turn, it does not specify the roadway. Part of the difficulty is the awkwardness of using the word construction “path or lane” in 28-815.

    The real problem is not whether a bike lane is or is not a part of the roadway, instead the problem is the FTR law [ARS 28-815 (A)]. Repeal it, and bike lanes will be optional, just like other preferential use lanes (HOV lanes, Bus lanes, etc.).

  8. M. Sanders quoted ARS 28-751 that says right turns should be made from the right edge of the roadway, but ARS 28-815 says motorists can’t drive in the bike lane. I’m told a motorist is legally allowed to enter the bike lane when the white stripe is broken, or that it’s no longer a bike lane when the white stripe is broken. This last definition, if true, is the only one I can think of that would prevent 28-751 and 28-815 from conflicting. But I don’t have a definitive source for this definition. (Anyone care to help?)

    However, merging into the bike lane in such a short distance (the length of the broken white line) creates a very dangerous situation for bicyclists.

  9. Derek — I think you’ve identified a conflict for right-turning motorists between those two laws. Perhaps the reason is that the generic method of turning law (28-751) is presumably as old as the hills and pre-dated any bike-lane specific laws… and that it simply has never been reconciled.

    By the way, in Phoenix, they tend to simply discontinue the bike lane stripe the last 50 feet (which really isn’t enough room for usual car-speeds) at each intersection. And in any case, the solid line continues past driveways; leaving drivers in right-turn merge limbo.

    Appaerntly the traffic folks call this a “broken” line…
    Here is some general deifintions about what white lines versus broken lines mean from MUTCD 3b.04
    The broken line detail is clearly shown in the AASHTO bike design guide. Also interesting is the draft guide (also at that link) has a useful shout-out about dashed line and state laws.

  10. In a message I received from Florida bicycle program manager, Dwight Kingsbury:

    I think California may be the only state that explicitly clarifies that a motorist may enter a bike lane to comply with the basic requirement (included in most state codes) that “Both the approach for a right-hand turn and a right-hand turn shall be made as close as practicable to the right-hand curb or edge of the roadway” (CVC 22100, http://www.dmv.ca.gov/pubs/vctop/d11/vc22100.htm ). The clarification is made in CVC 21209 (http://www.dmv.ca.gov/pubs/vctop/d11/vc21209.htm ):

    “ (a) No person shall drive a motor vehicle in a bicycle lane established on a roadway pursuant to Section 21207 except as follows:

    […]

    (2) To enter or leave the roadway.

    (3) To prepare for a turn within a distance of 200 feet from the intersection.”

    Consistent with this, California MUTCD 9C.04 (http://www.dot.ca.gov/hq/traffops/signtech/mutcdsupp/pdf/camutcd2012/Part9.pdf ) recommends (P19) that “Where there is no right turn only lane and right turns are permitted, the solid stripe should terminate 100 feet to 200 feet prior to the intersection.” Option (P20) allows BL to be dashed up to or “near” the intersection, instead of being terminated.

    Most other state codes simply set forth the basic rule for making a right turn, as quoted by Michael Sanders (see below), and mention no exception where a bike lane is marked. By implication, then, a right-turning motorist is to enter a bike lane marked on intersection approach, as necessary to comply with the basic rule.

    Reasons for the basic rule are several:

    (1) helps indicate motorist’s intention to turn right, even if they neglect to signal, thereby reducing risk of right-hook crash with cyclist or rear-end collision with an overtaking motorist;

    (2) moves turning motorist a little out of the through traffic stream, making it easier for a closely following motorist to pass with less risk of rear-ending or sideswiping the turning motorist;

    (3) requires turning motorist to choose an appropriate point to enter bike lane in advance of the intersection, rather than proceed directly to the intersection and then try to sort out, at the last moment, whether any approaching cyclist is sufficiently distant that it would be safe to turn right (or, alternatively, simply come to a dead stop in the intersection, wait for cyclist to pass, and risk being rear-ended).

    **********************************************

    In Arizona, “Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway” http://www.azleg.state.az.us/ars/28/00751.htm. When right-turning vehicles merge, it minimizes or eliminates the risk of the “right hook” crash. Refer to our “Share the Road” guide (http://www.azbikeped.org/images/adot%20STR061208.pdf, pp. 32 & 48).

  11. I had a bicyclist tell me this morning that according to Arizona State Law, he’s allowed to ride his bike to the left of the bike lane.. in other words out in the main roadway… I said.. “why would they even put them in, if you could ride out in the middle of the road?” He kept going on and on.. so I just chalked it up as he was a moron…

    Curiosity got the better of me and I looked up the law, and it actually didn’t say anything about bikes being in the lanes, what it said was they need to be as far to the right hand curb as possible… so any “normal” person with common sense would read that as saying they should be INSIDE the bike lane.

    Lorrie — thank you for your comment.
    The law you are referring to is 28-815, in particular you skipped the part about the edge of the roadway; and additionally you skipped the numerous exceptions altogether.

    The first thing to establish (assuming the bicyclist was going slower than than the “speed of traffic”) is whether or not it was in fact a bike lane;
    Please see: http://azbikelaw.org/blog/is-this-a-bike-lane/
    for examples of things that look like bike lanes but are not. These are in common use around metro-phoenix area.
    If it were, in fact, a designated bike lane AND none of the other 4 exceptions applied (e.g. debris, too narrow, preparing to turn left..) then bicyclists are generally required to ride in a DESIGNATED Bike Lane.
    There aren’t really very many designated bike lanes around here, but obviously it depends on exactly where you were at the time. There are far more numerous shoulders — cyclists aren’t required to ride on shoulders, shoulder are not part of the roadway.

    Note that a bike lane sign says “bike lane”, and is black and white.
    A Bike Route sign says “Bike Route”, is green and white and is NOT, i repeat, NOT a bike lane

  12. My friend and I were proceeding on a designated multi-use path (bikes and pedestrians)that runs parallel to a thoroughfare and “crosses” an intersection controlled by a traffic light. The light was green for us, and as he entered the area marked as a crosswalk (the path continues on the other side), a motorist making a right hand turn hit him. Question: Clearly the motorist is negligent for not making sure the crosswalk was clear before attempting to turn right against the red light. But is there any statute or interpretive rule requiring cyclists to dismount when they come to an intersection such as I’ve described, and walk rather than ride their bikes to the other side of the street (where the path contines)?

    Hey Dennis;
    Sorry to hear about your friend’s collision… I’d be curious to know where, if you want to share that info. Such “sidepaths” are generally quite problematic for cyclists safety-wise, see http://azbikelaw.org/blog/where-to-ride-on-the-road/ and scroll down to sidepaths.
    Anyways — preface and reminder, IANAL (I am not a lawyer) so seek counsel — short answer: no. longer answer there is always the possibility of local laws, and for a longer discussion see http://azbikelaw.org/blog/sidewalk-cycling-in-arizona/ which has a bunch of crosswalk info and pay special attention to the Maxwell decision.

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