Phoenix pays millions… March 6, 2010.

On one hand it seems like a rather moderate amount. And not all of these claims has to do with what would normally be viewed as a traffic crash (like e.g. the bus-door-closing ones). Yet still it illuminates just another unpaid (“external“) cost of our car-culture.

Cities, townships, counties, states, and the federal government all run enormous fleets of motor vehicles, running in the many millions of vehicles. Liability expenses being just one of the smaller costs; fuel, capital cost, maintenance and so forth all add up to more.

The vast majority of these expenses are not paid via any sort of use fees (e.g. gasoline tax) on automobiles — but rather from general fund sources; property taxes, general sales taxes, income taxes, and so forth. And my favorite, the new grocery tax; yes we have to pay city sales taxes on groceries, in part to bankroll Phoenix’s vehicle fleet.

Car Allowances

Beyond the obvious, direct, costs of operating vehicles; cities also like to extend “car allowances” to a variety of city employees.

Amid budget cuts, Valley cities continue to keep vehicle perks Feb 24, 2010. “The employees are not required to prove they use their personal vehicles for government business, and some employees rarely leave the office during the workday, basically using the allowance to pay their way to and from work”. “Phoenix’s vehicle allowances accounting for $1.37 million”. And many/most cities also have similar allowances.

The US DOT runs a very elaborate, publicly available, query-able database for every traffic fatality in the US called FARS — Fatality Analysis and Reporting System.

There is a web interface that leads the user through building a query, e.g. below is a tabular report for all State=4 (Arizona), and Person Type=6 or 7 (bicyclist or other cyclist) in 2008, 20 cases were found for 19 collisions (this is a slight discrepancy of the reported 19 figure in the official NHTSA state-by-state report).

some handy info can be gleaned, e.g. the gps coordinates for most incidents are listed, you can use google to map it, e.g. 32.81931389, -111.68361944 is the intersection of I-8 and I-10.
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I picked up this tidbit from the googlegroup BicycleDriving An Incredible Statement…

This isn’t really remarkable or anything, except in light of the various strange interpretations of various Law enforcement agencies which result in improper application of the law(e.g. Flagstaff, Flag/Coconino Sheriff, Tempe & Pima Sheriff …)

Educated cyclists know that they not only can (legally), but should (for safety) occupy an entire lane when conditions dictate. One of these conditions is when the lane is narrow.

Arizona law is quite strong and plain in this regard. Here is the relevant law, (I intentionally clipped the part about the cyclist’s speed, which is briefly treated later).

§28-815. Riding on roadways… A. A person riding a bicycle…shall ride as close as practicable to the right-hand curb or edge of the roadway, except… 4. If the lane in which the person is operating the bicycle is too narrow for a bicycle and a vehicle to travel safely side by side within the lane.

So this law creates a duty in part A for cyclists, but there are enumerated exceptions to this duty, the 4th one being the subject of this article.

We are reminded that from time to time, cyclists are targeted by law enforcement for “taking the lane”. This sometimes takes the form of mis-guided paternalism — “you should always ride to the extreme right so you don’t get hit”. It also can take a an uglier tone of faux-paternalism, really just a thinly-veiled automobile-superiority attitude, the sub-text being “cyclists must always get out of the way of cars”.

And disappointingly sometimes cyclists are found guilty (actually “responsible” is the correct term, I am told) by compliant lower courts.

Happily, Arizona cyclists can point to not one but two relatively recent Superior Court decisions which reversed on appeal these wrongful convictions.

The first case, Arizona V. Goren, occurred in Tempe (Maricopa County). In the second case the rider was riding two abreast, but that isn’t relevant to the case; Arizona V. Piscopo, Pima County (see more generally at Two Abreastness. Also see the case at TBL, the blog of the lawyer who represented Piscopo).

I would encourage everyone to read both of these decisions because they are brief, well-written, and illustrative.

How narrow is narrow?

This can be a gray area; it is not (directly) specified in the law. In Goren, Officer Robinson maintained that 12′10″ (his measurement) was more than ample. He was, however, not aware of the concept of usable space; and thus incorrectly counted the gutter as lane width. In the end, the court accepted that the defendant’s measurement approximately 11′ usable width was both accurate and clearly narrow. Much the same conclusion was reached in Piscopo: “credibility was not at issue and the salient evidence — the dimensions at play — appear undisputed”, the dimension according to the defendant were “no more than 11 feet wide”.

Both cases counted on using the minimum 3′ passing distance specified in §28-735 as an entitlement to the cyclist when determining narrowness. (see Three-Foot Laws for more generally about this law including other states who have a passing-distance law)

From an engineering perspective, the authoritative AAHSTO Guide for the Development of Bicycle Facilities, 1999 says minimum 14′ usable width for side-by-side sharing:

In general, 4.2 m (14 feet) of usable lane width is the recommended width for shared use in a wide curb lane…(the gutter pan should not be included as usable width).

You can play with the dimensions, e.g. if you allow a minimum of 1 foot both to the left of the (8′) motor vehicle, and the right of the (2′) cyclist, plus mandated 3′ between the cyclist and motor vehicle — you come up with something akin to the 14′ mentioned by AAHSTO. Many vehicles are less than 8′, but not by much — and don’t forget to include the mirror width which is commonly not included in specifications. Traffic engineer and cyclist Richard Moeur has created an elegant schematic drawing divvying up the 14′ here.

The Issue of Speed

Neither of the aforementioned cases dealt with whether or not the cyclists were “at less than the normal speed of traffic”. In a nutshell: some courts (but none in Arizona, that i know of) have held that normal means normal for a bicycle. See e.g. State V Patrick , which references the Selz decision; both out of Ohio.

But what about Impeding?

This was not at issue in either of these cases, for some more general discussion of impeding see Bicycles are not Motor Vehicles and Why it Matters.

The Pima County Sheriff’s Office

There is a memo from Lt. K. Woolridge date March 5, 2009 which states the (Pima) county attoney’s position particularly with respect to riding two-abreast. Further inquiries are directed to Seargent Copfer.

That bike lane was, however, marked as being “closed” (at least in one direction) and was undergoing construction, with it’s surface abraded in both directions. The judge, incredibly, suggested that the cyclist should have been riding in the gutter pan, since that was “smooth” — the deputy quickly agreed that this would great. When questioned about where to ride, the deputy replied “if you’re asking me the way I would ride a bicycle… I would NEVER ride in the lane. Myself, when I ride a bicycle, if there’s 3 INCHES on the right side of the road outside the lane, that’s where I ride my bicycle”.

The deputy’s testimony dripped of the usual false or misguided paternalism; that it’s “too dangerous” to impede traffic, and so forth. This is demonstrably not true, particularly in the circumstances then existing; that is: daylight, urban, low speed roadways. The deputy should have been (monday morning quarterback here; and I doubt it would have impacted the outcome) directly challenged on this testimony.

I’ve written before in Bicycles are not motor vehicles, and why it matters how 28-704A does not apply to bicycles. The judge summarily dismissed this argument; she quoted from 28-812, and quickly concluded that the statute does apply to bicyclists. Thus finding the cyclist responsible for the violation. (she also again brought up the bizarre notion that the defendant could have been riding the gutter pan).

The trial was heard in Flagstaff Justice Court, before the Honorable Cathleen Brown Nichols, Justice of the Peace Pro Tempore.

The cyclist has prepared a stunningly detailed appeal. I wish Justin good luck with it. All cyclists should be very concerned with the outcome.

Story published in The Noise, it’s posted on the author’s blog: City Shenanigans Leave Bicyclists with No Options, covering both the Pryzby and Bus incident.

Be sure to this tidbit for more Flagstaff hijinks.

For starters, one victim, a motorist, dead. A number of injured motorists. The suspect, locked up since the crash on December 24, 2007.

Christopher Lee Smith, 32 years old, stands accused of DUI and manslaughter in a wrong-way, head-on collision on Pecos Road near 14th Street in Phoenix, AZ.

According to the Ahwatukee Foothills news story; “At the time of the crash, Smith was on probation for a previous misdemeanor DUI…”

Superior Court case number CR2008-102616 or search on supremecourt.az.gov

The “Sleep Driving” defense?

The so-called “sleep driving” defense may be employed, see e.g. this minute entry “Defense expert witness re sleep driving is discussed”

Trial delayed again due to a death in one of the victim’s family. The AFN is reporting (Oct 30, 2009? but i can’t find online) that the defendant has rejected a plea deal (no details given) and trial is scheduled for February 2010. The defendant remains incarcerated.

The Trial and Guilty Verdict

Trial coverage. Verdict, guilty. 2nd Degree Murder, and 3x aggravated assault.

Sleep driving. Sleep driving? SLEEP DRIVING!? What will the defense lawyers think of next? Does this ever really work? “…But defense attorney Charles Shell told the same jury that the tragedy was not his client’s fault because Smith was driving in his sleep and was unaware of what he was doing”, “An expert witness hired by the defense, Dr. Dave Gaither of Illinois, testified that if Smith had gone to sleep first, then he was probably sleep driving and unaware of what he was doing.” Hmm, what kind of doctor? apparently not a physician.

49th Leg, 2nd Regular Session; HB2633 ( text of HB2633). Its been assigned to the House TI (Transportation and Infrastructure) committee. It’s hard for me to imagine Chairman Biggs letting this bill go anywhere.

You can review articles and background materials from the last session here.

Speeding Flagstaff City bus skims by cyclist

[Breaking news; Thursday Feb 11, 2010 was media day, and this story is getting huge exposure. Today a short piece ran on channel 12 news out of Phoenix, and a longer detailed piece ran in the Arizona Daily Sun, Cyclist, city attorney in lane dispute. As of now the city attorney's office is saying "Staff at the city attorney's office has yet to make a final determination whether the state's 3-foot statute applies when a cyclist is in a bike lane" -- hint, read the law (link below), it's only like 3 sentences long. How long does a review take? the incident occurred almost two months ago.  Also a story published in The Noise, it's posted on the author's blog: City Shenanigans Leave Bicyclists with No Options, covering both the Pryzby and Bus incident.]

The City of Flagstaff (Police Department, and City Attorney’s Office) has a new spin on not enforcing §28-735. They claim it doesn’t apply when cyclists are riding in a bike lane.

The incident involves a cyclist, Randy Mason, riding at the far left of the bike lane; much of the rest of the lane being blocked by snow, and a (speeding, by the way) city bus passing dangerously close.

The law is pretty simple; it has three parts, A, B and C. Part A says overtaking motorists must (without qualification) maintain a minimum of 3 feet of clearance when passing a bicyclist. Part B allows for enhanced penalties in the event of serious injury or death. And Part C says that these enhanced penalties in Part B don’t apply in certain situations if a bike lane is involved.

The part C business, one would suspect, is the fig leaf that the city attorney’s office is using to cover this bit of malfeasance (note that as of the Sun article, the city attorney’s office is claiming it didn’t say that, and they are currently reviewing the case). No word from the city attorney about if speeding laws don’t apply.

These stories often have an air of he-said-she-said to them but in this case the surveillance video from the bus company itself is pretty compelling. The original video (taken by the city bus) is here.

It would be one thing for police to claim they don’t have enough evidence to issue a citation (or it’s too fuzzy, or whatever) but there is no excuse for this pretending the law says something that it does not.

Some discussion here.

[as an aside, I've always felt that we would be better off if Parts B and C were just gone entirely; leaving unsafe passing as a normal traffic infraction. If enhanced penalties were desired, the right way to do it would be to get 28-735 added as one of the enumerated items that triggers 28-672 / 675 / 676 ]

Disorderly Conduct

Another distasteful chapter of this story is that the cyclist was charged with a crime (these ridiculous charges were later dropped). I’m not sure who to blame for this; the main suspects are the bus driver, and Flagstaff PD. The video shows a quite civilized discourse; but I’m guessing the police could not have seen the video at the time. Statements made to the police should be verified against the video record — did someone make false statements to the police?

The BAC

The City of Flagstaff has a BAC. The incident apparently was on the agenda at the Jan 7, 2010 meeting, the only notations from the minutes about that item are

“Jeff Meilbeck and Randy Biles, of the Northern Arizona Intergovernmental Public Transportation Authority, were on hand to address the recent incident between a bike and a Mountain Line bus. Mr. Meilbeck said there is a close tie between buses and bikes. Mountain Line provides racks for two or three bikes on all its buses, and parking is provided at many stops. He said that NAIPTA wants to be responsive to the community. Mr. Ince said that it is important for the bicycle community to know that NAIPTA is responsive and has a process for addressing problems and issues. Ms. Blackman suggested that Mountain Line host an open house for bicyclists and pedestrians.”

So it remains to be seen what, if any, response to the “process” will yield. Is NAIPTA investigating?

The Bus Company

The entity that oversees public transit in Flagstaff is NAIPTA,  Northern Arizona Intergovernmental Public Transportation Authority. It is not clear to me if they contract out operations, or directly operate the buses; There is an entity referred to as “Mountain Line”, and the general manager is Jeff  Meilbeck.

What sort of company (or entity?) hires this sort of driver?   What sort of training is done? Is there oversight by the city?

Bus operators are normally and understandably concerned with risk management, and best safety practices because of the huge liability exposure — say if one of your buses is speeding along and wipes out a cyclist or pedestrian.

Bus / Bike Safety Materials

Chicago Transit Authority has some nice materials specifically aimed at transit bus operators and cyclists, in particular a video. Here is the part about passing (speaking to bus operators): “Passing… this is a time when EXTRA care is needed… Remember, you must allow safe clearance between your bus and a bike. That’s a MININIUM of 3 feet, if traffic allows, leave more space. If there isn’t enough room for you to pass, you MUST slow down and wait for clearance”. There are also pamphlets and posters that someone was nice enough to email me but I don’t see them online.

Things the Flagstaff Police said

(Cyclist): We can operate on the shoulder, we can operate on the sidewalk, …

(Officer):  You cannot operate on the sidewalk.

(Cyclist): I can’t operate my bicycle on the sidewalk?

(Officer): No you can’t.

(Cyclist): You guys don’t understand the laws in this town at all, if you’re gonna believe that

(Officer): Alright, unfortunately it appears that, .. unfortunately it appears you don’t.

(Cyclist): … I can’t quote the number but I’m pretty sure that I have three feet in the bike lane, so if it needs to go to the …

(Officer): I don’t know where you get the three feet. You have to, …If you’re in the lane, he needs to give you as much room as he can, but he has, he also has the right not, he has the law that says you can’t take up two …

So, 1) The sidewalk thing is wrong, it would only be illegal if it were posted, and from what I understand it isn’t posted.  See Flagstaff Code of Ordinances. Title 9, section 9-05. Also see here for general sidewalk riding info. And 2) he seem wholly unaware of §28-735 a law that has been on the books now for almost 10 years. His last statement reveals his anti-cycling biases more fully.

These guys are paid to know the law, the three foot law, §28-735, has been on the books for going on 10 years now. And why does he think it’s illegal to ride on the sidewalk?

Flagstaff PD was sufficiently rattled by this to issue a training bulletin “requiring all officers to review all bicycle laws, [Deputy Chief] Treadway said”. This sounds good, but I’m not sure exactly what this bulletin said (I’d like to know).

NAIPTA Speaks [added March 7]

It has been brought to my attention that NAIPTA issued a response to the incident, apparently back in late February. The description and summary of the incident seems reasonable. The response itself consisted of 4 points — one of which is encouraging (citing more driver training, and specifically mentioning the Chicago video cited above), one was neutral discussing confrontation training, but the last two were disappointing.

In one they claim the evidence clearly shows that at least three feet was maintained. This isn’t what I’m seeing from their video. I see a wide vehicle approximately centered in a narrow lane (103″, NOT counting protruding mirrors,  in a 138″ lane, according to the cyclist’s measurements), and the left edge of the cyclist appears directly above the bike-lane stripe. That would leave well under TWO FEET of clearance, not even counting the bus’ mirrors.

And in the last point they claim that their speed readout is unreliable. This hasn’t been my experience with GPS navigation equipment.

I want to reiterate on these last two points, that this evidence may well not be enough to bring legal charges, or make them stick — but that doesn’t mean that what the driver did was right, either.

The general idea is to create a subset of road users who are somehow more vulnerable than those inside of enclosed motor vehicle; this usually would include pedestrians and bicyclists, and might include motorcyclists, animal riders, animal drawn conveyances, and so forth. If someone in this subset is harmed by the negligent actions of a motorist, then that motorist is subject to enhanced penalties.

This page from the Cascade Bike Club (the state of Washington) describes it pretty well. The idea of making it a legislative priority is pretty popular. E.g.: Virgina Bicycling Federation. LACBC (California). Illinois. New York. Rhode Island. So it is a bit of a trend — and much like the Safe Passing Distance Laws were/are a trend, there isn’t any evidence one way or another that show these laws are effective.

Oregon

Oregon has had a vulnerable road user law since 2007 — making it the first such law in the US. Bike lawyer Ray Thomas was instrumental in passage. He offers interesting and useful political legislative considerations here. Oregon’s enhance penalties are non-criminal, and involve various trade offs between a fine, license suspension, or community service. The penalty is keyed to the comission of a careless driving offense that results in a serious injury or death.

The Texas Experience 2005-2009

San Antonio Metro Columnist Veronica Flores writes of political problems with such legislation: “For eight years, bicycling advocates worked to get such legislation passed, changing the proposal as necessary to gain widespread support… In vetoing the bill, Perry cited penalties that he said already exist when a motorist is at fault for causing a collision, “whether it is against a ‘vulnerable user’ or not.”

But here is some more detail on the actual sausage-making process… Saying that the proposal was changed as necessary to gain widespread support is a nice way to put it. NTVC (North Texas Vehicular Cyclist) puts it more bluntly “Bills introduced this session sought to include various pedestrian groups among legitimate road users in an effort to garner support among otherwise indifferent legislators” — in other words, a little horse trading that would, in NTVC’s view, would water-down cyclist’s rights.

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Mionske’s take on vulnerable user legislation.

They aren’t, of course, actually free — thus someone else is paying, not the driver using it, it is external to the cost of driving; call it socialism for drivers. Thus leading to ever more demand for more driving and more parking spaces.

from the Arizona Republic 12/28/2009; Ahwatukee Park-and-Ride Lot Expanding.

In the example mentioned in the story, 353 spaces are being added to the existing 562 for a cost of $3M. That’s $8,500 per space. But that is only the cost of construction (or land but that is cheap); the ongoing costs aren’t listed but they are significant. A not exhaustive list would look something like; lighting, maintenance like sweeping and cleaning, and re-sealing asphalt, full-time(one employee ~ 50hrs/week) security during operating hours, cost of operating the small building (heat and cooled approximately 24×7, even though no one is usually there; didn’t these people ever hear of a programmable thermostat?).

see Doug Shoup’s book mentioned here; The High Cost of Free parking.

In the particular example of a transit park-and-ride lot it gets even more interesting because of the cross-subsidies involved in mass transit. One wonders if the best use of presumably limited transit funds is to build parking spaces for the relatively well-off remote suburban commuters. This lot serves only one bus line; a rapid/express (no intermediate stops) route between Ahwatukee and downtown Phoenix. The line only runs one way, and only in the morning and evening. Thus the parking spots have low turnover — one spot equals one round trip rider.