Tag Archives: case law

Judge to cyclist: ride in the gutter pan

[update sometime in 2012(? in any event, well after this ticket and trial) the deputy who wrote this citation was relieved of duty with the CCSO, he apparently had some truthfullness and other job-performance issues]

A Flagstaff cyclist was ticketed for violating ARS 28-704A by a Yavapi Coconino County Sheriff’s deputy. The deputy was apparently upset that a cyclist was impeding traffic, that is blocking a lane — seeing as how there was a perfectly good bike lane available. Continue reading Judge to cyclist: ride in the gutter pan

State V. Patrick

State v. Patrick, 153 Ohio Misc.2d 20, 2008-Ohio-7142

Link to .pdf decision on Ohio Supreme Court website, or can google for it, to quick view it.

It is unusual for a lower court decision to be published (so why was this one?).

The short summary is; since there was no probable cause for the deputy to do the stop in the first place (because the defendant was doing nothing illegal), everything that came later (the alleged disorderly conduct, resisting arrest, and whatever else) was supressed. All charges were dismissed.

Mionske covered this case on his blog at bicycling.com.

Also, a roundup of this, and many other, “Right to the Road” cases.

Steve Magas described it as follows:

In State v. Patrick, 153 Ohio Misc.2d 20, Tony Patrick and another rider were riding two abreast when a police officer ordered them to get off the road. They refused and Tony was ultimately stopped, TASERed, beaten and arrested by police and charged with felonies and misdemeanors. However, the trial judge dismissed all charges holding, in part, that cyclists have the right to ride two abreast and the officer had no right to stop Tony. The judge in that case, a cyclist himself, stated that while cyclists SHOULD display courtesy to motorists, there is no legal requirement that they give way.

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28-672 in the news

[ There have been many changes to this law, most recently in 2018, see history, below]

Prosecutors routinely decline to prosecute negligent drivers who kill/injure. Nearly without exception, they will only seek homicide (i.e. negligent homicide, or manslaughter) / aggravated assault charges if the driver is impaired. Short of that, the hurdle, in the minds of prosecutors, is very very high.

Arizona has no vehicular homicide law, it does however since 1998 have a law, §28-672, ” Causing serious physical injury or death by a moving violation” (and some companion laws 28-675 and 6 which work in an analogous fashion). The catch is that in order to be charged with 28-672, the driver must have been engaging in one or more of a specific list of infractions. For example, running a red light. Continue reading 28-672 in the news

Bicycles are not motor vehicles, and why it matters

Actually, we should have said: riders of bicycles are not bound by rules that apply only to drivers of motor vehicles…

It’s helpful to note that the “rules of the road” apply not to vehicles, or bikes, but rather to the people operating these things. A typical example is the rule for what to do at a stop sign, §28-855(B). “A driver of a vehicle approaching a stop sign shall stop…”. [1]

In Arizona, bicycles are, by definition, not vehicles; nor are they motor vehicles. Here are those definitions §28-101:

§28-101. Definitions
...
58. "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 or used exclusively on stationary rails or tracks.
33. "Motor vehicle":
(a) Means either:
   (i) A self-propelled vehicle.
   (ii) For the purposes of the laws relating to the imposition of a tax on motor vehicle fuel, a vehicle that is operated on the highways of this state and that is propelled by the use of motor vehicle fuel.
(b) Does not include a motorized wheelchair, an electric personal assistive mobility device or a motorized skateboard...

So, if a bicycle is not a vehicle, why does a cyclist have to stop at stop signs? Simple, because of a law helpfully titled Applicability of traffic laws to bicycle riders§28-812,

§28-812. Applicability of traffic laws to bicycle riders
A person riding a bicycle on a roadway or on a shoulder adjoining a roadway is granted all of the rights and is subject to all of the duties applicable to the driver of a vehicle by this chapter and chapters 4 and 5 of this title, except special rules in this article and except provisions of this chapter and chapters 4 and 5 of this title that by their nature can have no application.

 

This is a cyclist’s fundamental right to the road; the equal of driver’s.

Note well that it refers specifically to the rights and duties of the driver of vehicle — and NOT the driver of MOTOR vehicle, in fact the word motor does not appear at all in 28-812.

It might surprise you to note that the phrase “motor vehicle” occurs only a handful of places in ARS Title 28, Transportation, with respect to how a driver must operate a vehicle. By far, most driver’s duties refer, as in the stop sign example above, simply to vehicle.

Some references are incidental; lane and speed restrictions on motor vehicles weighing over 26,000 pounds (§28-736, §28-709). Another was intended to set minimum passing clearance when a motor vehicle overtakes a bicycle (§28-735). Two germane examples for cyclists are following distance, and impeding traffic.

§28-730, “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent…”, without the word motor in this statute, pacelining would likely be illegal. Since reasonable people would probably agree that a couple of inches is an inappropriately small following distance.

§28-704(A), “A person shall not drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic…”. This is what I refer to as the cyclist’s second most fundamental right to the road, because if this statute were to apply to cyclists, then they would in effect be not allowed to use any road where traffic even might be impeded; regardless of number of lanes, width, presence or absence of a bike lane, or anything else. There is some detailed minutia [2] revolving around what is meant by the “normal and reasonable movement” but that is immaterial to cyclists, since this section is inapplicable to them.

Likewise, §28-701(E) “A person shall not drive a MOTOR vehicle at a speed that is less than the speed that is reasonable and prudent under existing conditions”,  never applies to bicyclists.

The point is that the phrase motor vehicle is used sparingly and deliberately to apply only to drivers of that type of vehicle, reflecting clear legislative intent. In the case of 28-704(A) to allow cyclists to use all roads even though motorists might sometimes be impeded (with some caveats: There is a specific allowance for prohibiting bicycles on controlled access highways, and other roads on a case-by-case basis).

[1] There are actually several variations besides “driver of a vehicle” see the-driver-of-a-vehicle for a fuller taxonomy.

[2] A small number of states, but not AZ, (see chart below) have an impeding statute that omits the word “motor” making it necessary to show that a cyclist’s use of a roadway is a “normal and reasonable” movement of traffic in order to not be liable for impeding. This was done successfully, e.g in the Trotwood v. Selz case, in a published ruling.

Note that persons riding animals or driving animal drawn vehicles are also drivers of vehicles. See 28-625

Elliot Road, eastbound east of Priest Drive, City of Tempe. Sign placed by the city reminds users to "Share the Road". Posted speed limit 45mph. Even the fastest bicyclists will be traveling well below the posted speed limit. This arterial, like most, has lanes which are "too narrow to share safely side by side", and as such, cyclists going straight ahead are advised to ride near the center of the right-most through lane. Motorists wishing to overtake must change lanes (at least partially) to pass legally and safely.
Elliot Road, eastbound east of Priest Drive, City of Tempe. Sign placed by the city reminds users to “Share the Road”. Posted speed limit 45mph. Even the fastest bicyclists will be traveling well below the posted speed limit. This arterial, like most, has lanes which are “too narrow to share safely side by side”, and as such, cyclists going straight ahead are advised to ride near the center of the right-most through lane. Motorists wishing to overtake must change lanes (at least partially) to pass legally and safely.

.That motor vehicle statutes don’t apply to bicyclists needed to be litigated for a number of cases where Flagstaff PD cited a cyclist for 28-701E.  The City of Flagstaff’s assistant city prosecutor, Mr. Brown as detailed in this trial transcript; the prosecutor at closing said “MR. BROWN: For Count B, 28-701E, (indiscernible) read the statute, State would have to agree that that statute seems to apply strictly to motor vehicles, since it’s not a moped or anything like that, it’s strictly a bicycle, the statue would not be applicable…”

Civil Cases

Here’s an interesting reference/mention written by Ann Groninger of bikelaw.com about a wrongful death lawsuit involving a distracted driver in North Carolina which resulted in the driver pleading guilty to misdemeanor death by motor vehicle, and ultimately a $4.5 Million jury verdict for wrongful death including punitive damages:

The defense asked also asked the judge to give the jury the instruction on impeding traffic:

The motor vehicle law provides that no person shall operate a motor vehicle on a highway at such a slow speed as to impede the normal and reasonable movement of traffic.

This is typical for every bicycle case I have tried and, as in every other case, the judge declined the instruction once I pointed out that it applies to “motor vehicles,” not bicycles.

. The civil case would be named something like Rotberg v. Rutledge ( ).

Other US States

"green" states specify that impeding law applies only to motorists
“green” states specify that impeding law applies only to motorists

According to iamtraffic :

In 42 US states the law against “impeding traffic” only applies to motor vehicle drivers who impede (not merely delay) other drivers by driving too slowly, typically on freeways. Sadly, 6 US states do NOT exclude bicyclists from the provisions of this law and police sometimes use it as a way to harass cyclists who operate as drivers.

The caselaw from Ohio (where, as noted above in the iamtraffic graphic), where bicyclists are not exempted from the general impeding law, is illuminating. In the published opinion of State v. Selz [2000], 139 Ohio App.3d 947 the appeals court found an operator, in this case a bicyclist, cannot be in violation of the impeding statute as long as the operator’s speed is reasonable for the type of device in use. “We conclude that a bicyclist is not in violation of the ordinance when he is traveling as fast as he reasonably can”. The reasoning is based on a Georgia Appeals court opinion Lott v. Smith (1980), 156 Ga. App. 826 275 S.E.2d 720. that a corn combine (a motor vehicle, by the way) cannot be held in violation of the impeding rule for traveling 17mph on a road with a much higher speed limit and despite the fact that other traffic was clearly being impeded because the combine was traveling as fast as is reasonable for a corn combine. Below is the synopsis of the Selz opinion, with

In either [meaning, the Selz/bicycle case, or the Georgia corn combine] case, holding the operator to have violated the slow speed statute would be tantamount to excluding operators of these vehicles from the public roadways, something that each legislative authority, respectively, has not clearly expressed an intention to do.

All this means that Arizona law, even if mis-applied to bicyclists (who are not the driver of a motorized vehicle. Or for that matter, say, a slow-moving truck driver, who clearly is) could not be in violation of the impeding statute because the legislature has not banned bicyclists (or slow moving trucks) from public roads.  Due to the persuasive precedents set by Selz and Lott.

Also note that in a reinforcing nod to Selz, Ohio subsequently augmented their impeding law adding subsection 4511.22 (C), emphasis added: “In a case involving a violation of this section, the trier of fact, in determining whether the vehicle was being operated at an unreasonably slow speed, shall consider the capabilities of the vehicle and its operator

See also the tasering case of Tony Patrick involving failure to obey an officer’s (unlawful) order.

The Court of Appeals of Oregon upheld a finding of responsible against a cyclist who was one of a group that had intentionally stopped traffic as part of a “critical mass” protest.  State v. Potter 57 P.3d 944, 185 Or.App. 81 (2002). The court was not asked to consider whether or not the speed was reasonable; in any event the court found vehicle codes apply to bicyclists unless explicitly exempted; for example the statue that requires vehicle title and registration.
The same court in another case curiously found that “after the (drivers being impeded) decided to follow defendant, he did not impede or block them; their progress was slowed by their choice (of) … following him, not by defendant’s driving”, State v. Tiffin 202 Or. App. 199, 121 P.3d 9 (2005)

The Potter case was unfortunate on many levels, not the least of which is the impeding vehicle statute was inappropriate for the circumstances, given the actions were intentional and done to stop (other) traffic, and not as a consequence of routine transportation where a slower vehicle might delay other traffic; In Arizona, the appropriate charge for such circumstances would be 13-2906. Obstructing a highway or other public thoroughfare.

UVC

The UVC equivalence to ARS:

 

UVC ARS
§11-1202—Traffic laws apply to persons on bicycles and other human powered vehiclesEvery person propelling a vehicle by human power or riding a bicycle shall have all of the rights and all of the duties applicable to the driver of any other vehicle under chapters 10 and 11, except as to special regulations in this article and except as to those provisions which by their nature can have no application. §28-812. Applicability of traffic laws to bicycle ridersA person riding a bicycle on a roadway or on a shoulder adjoining a roadway is granted all of the rights and is subject to all of the duties applicable to the driver of a vehicle by this chapter and chapters 4 and 5 of this title, except special rules in this article and except provisions of this chapter and chapters 4 and 5 of this title that by their nature can have no application.
 §11-805 – Minimum speed regulation(a) No person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.  28-704. Minimum speed limits;  A. A person shall not drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic except when either of the following applies…
 ? can’t find, perhaps the UVC has no slower than R&P? 28-701. Reasonable and prudent speed;E. A person shall not drive a motor vehicle at a speed that is less than the speed that is reasonable and prudent under existing conditions unless the speed that is reasonable and prudent exceeds the maximum safe operating speed of the lawfully operated implement of husbandry.
   

 

Principles of statutory construction and interpretation

This is a pretty good roundup of the principles, as they appear in  U.S. Parking Sys v. City of Phoenix, 160 Ariz. 210, 211, 772 P.2d 33, 34 (App. 1989)

We begin our examination … by noting certain principles of statutory construction and interpretation…

Where a term is used in one provision of a statute and omitted from another, that term should not be read into the section where it is omitted. Dunlop v. First Nat’l Bank of Arizona, 399 F. Supp. 855 (D.C.Az. 1975).

28-704A (for example) uses the term ‘motor’ while 28-812 does not. The term ‘motor’ should not be read into 28-704.

 

An unambiguous statute should be interpreted to mean what it plainly states unless an absurdity results. Holding v. Industrial Comm’n of Arizona, 139 Ariz. 548, 679 P.2d 571 (App. 1984).

28-704A unambiguously applies specifically to drivers of motor vehicles.

 

While it is true that title headings in statutes are not part of the law… , we can nevertheless refer to titles and captions for indications of legislative intent. State v. Superior Court, 128 Ariz. 535, 627 P.2d 686 (1981).

 

When a statute sets forth the things on which it will operate, it will be construed to exclude from its effect those not expressly mentioned. Roller Village, Inc. v. Superior Court, 154 Ariz. 195, 741 P.2d 328 (App. 1987).

28-704A operates on drivers of motor vehicle. All others are excluded.

 

Unless otherwise defined, words in a statute will be interpreted as taking their ordinary common meaning. Fagner, supra; Harrelson v. Industrial Comm’n of Arizona, 144 Ariz. 369, 697 P.2d 1119 (App. 1984)

BUI — Bicycling Under the Influence

PLEASE HELP ME UNDERSTANDemail me or leave a comment as to your interest in the subject… I am not a lawyer, I am not soliciting business, just wondering why all the interest in this subject???

It goes without saying that mixing bicycling and drinking is extremely dangerous — there I said it after all — but what about the law? Bicyclists in Arizona are subject to DUI law, Continue reading BUI — Bicycling Under the Influence

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 (local copy) 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.Rosenthal v. County of Pima (link to opinon on Leagle)

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 a 2013 Court of Appeals decision 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 [as of the time this was written, in 2007. It seems it may have changed in the meantime]. 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.