Category: bikelaw

What is a ‘Vulnerable Roadway User’ Law?

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 2007

Oregon has had a vulnerable road user law since 2007 (effective date Jan 1,2008) — 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 commission of a careless driving offense that results in a serious injury or death.

To see the actual language of the law: look up HB 3314 from the 2007 Regular Session at www.leg.state.or.us. It adds a new section to Oregon’s existing careless driving law, ORS 811.135

What have been the results? It’s way to early to tell anything with crash stats (I originally wrote this article several years ago; perhaps in 2010?) — it ultimately might be impossible to discern. But one does wonder what became of prosecutions under this law?? There were, for example, 104 traffic deaths of bicyclist and ped in 2008 and 2009, the last full year of NHTSA stats available. (51+35 peds, 10+8 cyclists, 2008 and 2009 respectively). And there must have been at least several hundred of serious injuries. What became of these cases? How many vulnerable users’ prosecutions; any license suspensions, etc? I can’t find any outcomes.

As I am updating this now in late 2013, Oregon’s law has been on the books for just shy of six years; I have yet to see more than a tiny handful of mentions of this law (here is one involving a bicyclist hit by a garbage truck; I can’t even find the outcome, the article just says the driver will be charged). There have been now at least many hundreds (more reasonably a couple of thousand — it is some fraction of fatal or seriously injured bicyclist or pedestrian) of potential cases; where are the charges? (that fraction tends to hover around 50%). See this comment below from story published in nextcity in 2014. Here is one conviction where a Trimet bus driver Sandi Day killed two peds in a crosswalk.

Nevada 2011(?)

I can’t find the legislation, but it seems to be from same year as a 3-foot/move over bill was passed. In any event it obviously passed, here from NV’s DMV:

Motorists may be charged with reckless driving if they are at-fault in any collision with a bicyclist or a pedestrian. Penalties include a driver license suspension. (NRS 484B.280)

Washington 2011

Legislative effort in state of WA passed a vulnerable user’s law in the spring 2011 (but doesn’t become effective until June 1, 2012). As of March, a similar bill had passed both houses. See kiptasun article, which also has lots of links. HB1339 passed March 2, 2011; and SB5326 passed the week before. The bill is being pushed by the widow of bicyclist James “Mike” McClurkan. Here is a good graphic representation of “how a bill becomes law” in WA (but is very similar everywhere); Several articles from the Cascade Bicycle Club have lots of rich detail.

The law was signed by the governor May 16, 2011. To see the actual law; follow the link above to the senate bill SB5326, and in there there is a link to Session Laws: Chapter 372, 2011.

Some updates:

City Attorney to police: Don’t write a ticket at scene when someone walking or biking is injured includes references to SCAO (Seattle City Attorney’s Office) memo that i would like to read but can’t find; “…conduct falling just short of King County’s filing standards for ‘dry’ vehicular homicide charges”. I assume ‘dry’ being a reference to not impaired.

Law enforcement and judiciary still in the dark about Vulnerable User Law refers to what may have been the first prosecution under the VUL stemming from a serious injury in 2012; the driver was fined $2,500 and (I think?) a 90-day license suspension (or is it a maximum 90 day?).

Note that according to seattlebikeblog, my emphasis added:

“The brilliance of the law is that it does NOT SEEK TO CRIMINALIZE negligent driving. Instead, it outlines a series of financial penalties, license suspensions and driving education or relevant community service projects that, in theory, will ensure the person driving takes a level of accountability for what they have done.”

Washington updated 2019

Includes a very worthwhile change-lanes-to-pass provision. www.stritmatter.com/firm-blog/2019/4/30/rules-of-the-road-washington-grants-new-protection-to-vulnerable-roadway-users

See Substitute Senate Bill 5723; As of 5/3/2019 the bill is awating action from Gov. Here’s a .pdf of the markup.

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.

In more recent news, the CITY of El Paso pass their own version, Ordinance number 017466.

New York 2010

New York state recently got two new laws, the first dubbed Hayley and Diego’s Law (A0791) is a vulnerable user’s law. The second, Elle’s law (A10617), stiffens penalties including mandatory license suspension for any motor vehicle driver who KSIs (kills or seriously injures) anyone. More at streetsblog.org.

The LAB weighs in (early 2013 timeframe)

LAB weighs in in support of VRU (Vulnerable Roadway User) laws, and has model language.

Wisconsin 2013, 2014, 2015 and ongoing

Interesting history… this is the first instance that I am aware of where motorcycling groups formally got involved, in this case to block legislation. The model bill from LAB includes motorcyclists as vulnerable users; it’s not clear to me how many of the states that have passed VULs include motorcyclists. Ray Thomas (of OR), the one who started it all, at least in the US, mentions/implies that the AMA would be in favor of VUL “…even though the American Motorcyclist Association (AMA) ‘Motorcyclists Matter’ campaign was a pioneer in the enhanced penalty area”; though i’m not so sure of the implication.

I get the impression that the AMA is to motorcycling what the  (modern day) LAB is to the bicycle industry. I.e. large-scale D.C. lobbying shops, more industry-supported rather than member supported. And that the MRF (Motorcycle Riders Foundation) and the ABATE chapters are what the LAB used to be — they are true member-based organizations. I say this based on like 15 minutes of googling on motorcyclist organizations. If you don’t know what I’m talking about regarding LAB see e.g. labreform.org

2013: wisconsinbikefed.org  gets a bill introduced, LRB 1701/2, I think (not sure of the numbering scheme), be sure and scan through the comments because there are comments from ABATE leaders as well as counter-comments from WBF.

ABATE of Wisconsin ( a motorcyclist rights organization) opposes the bill, for equity reasons.

2014: A law passes which WisconsinBikeFed describes as “diluted” version of last year’s bill. From what I read briefly it contains no penalties, just some sort of education. Urbanmilwaukee.com story about Gov Walker signing AB388. (There was also an unrelated bill which passed, AB730, to allow bicycles on state trails; apparently they were heretofore banned?)

2015: Ramping up for what I imagine is their next legislative season, an Oct 2015 jsonline.com opens with the usual sensationalized nonsense “It’s been a deadly season for Wisconsin bicyclists. More than a dozen have been struck and killed by cars, but in most cases the drivers don’t face criminal charges, even when they appear to be at fault”

Why I do not support Vulnerable User Legislation

As an aside —  I don’t really see it happening in our current political climate.

The foundation for the supposed need seems to be based on a false premise. That being that when cyclists (or peds) are killed, the justice system has some sort of bias that prevents the responsible party from being appropriately punished.

This has not been my experience; at least in the cases of cyclist fatalities. That is to say, a negligent motorist who kills a cyclist is treated the same as a negligent motorist who kills another motorist.

The general rule involves whether or not the negligent driver is impaired: impaired = criminal charges; not impaired means no criminal charges. It is independent of the mode of transportation of the victim.

And in flagrant cases, charges are brought against reckless drivers who cause fatalities. See e.g. the driver who killed Drake Okusako, who was charged with manslaughter. Or the driver who killed Bob Walmsley (neg hom and leaving the scene).

What should be done

Arizona has no vehicular homicide or vehicular assault law.

I support any sort of stiffening of penalties for negligent drivers who kill / injure anyone. Arizona is one of only three states (AZ, Alaska, and Montana) that does not have a vehicular homicide law (more here), so perhaps that would be helpful. The general idea is that a special/another type of homicide is created; generally with relatively minor criminal penalties. So it would be similar to negligent homicide, a class 4 felony; but with a different standard of conduct. Neg Hom requires the prosecutor to prove the defendant was “criminally negligent”.

More tangibly — Arizona already has a criminal misdemeanor law 28-672. Causing serious physical injury or death by a moving violation. There are only two problems with it, 1) getting (in this case typically city) prosecutors to use it — but that would be the same problem with a new VUL law, and 2) the law itself has a discrete list of infractions.  The answer is to simply do away with the list of infractions and make it any moving violation. It would also be good to open up the ranges for the amount of time driver’s licenses get suspended — shamefully, the law has no mandatory minimum suspension period. This law has been tweaked several times in recent past, so there is at least some hope it could be tweaked again.

 

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Here are some thought from cyclist mighkwilson.com (and here too) regarding vulnerable user legislation generally.

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some context: Bicyclist’s trip represent about 2% of traffic (citation?); In Arizona there were 106,767 crashes between all types of traffic in 2009, of those 1,995 were bicylist crashes, representing 1.95% of all crashes. Source:  Motor Vehicle Crash Facts for the state of Arizona (ADOT)

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Here is Mionske’s take on vulnerable user legislation.