Tag Archives: case law

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

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

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.