by Ray Thomas
Ray Thomas is a Portland bicycle lawyer.
Sometimes strange things happen to a bill as it passes through the Oregon Legislature. For example, SB 108, which creates a new “safe distance” law for motorists passing bicycles, started out as a measure requiring commercial truckers to use a “forward crossview mirror” so as to see pedestrians immediately in front of trucks. However, along the way strange and wonderful things can happen as a bill passes back and forth between House and Senate committees. In the case of SB 108, Senator Floyd Prozanski (D-Eugene) managed to inject his ideas to reform Oregon’s bicycle passing laws. What emerged was a new law which added a collection of legal concepts intended to remedy several factors believed responsible for the tragic death of triathlete Jane Higdon on Territorial Road when she and a group of riders were passed by a truck hauling logs.
Text of New Law
SB 108 will be identified as ORS 811.065, “Unsafe passing of a person operating a bicycle.” SB 108 states:
“(1) A driver of a motor vehicle commits the offense of unsafe passing of a person operating a bicycle if the driver violates any of the following requirements:
(a) The driver of a motor vehicle may only pass a person operating a bicycle by driving to the left of the bicycle at a safe distance and returning to the lane of travel once the motor vehicle is safely clear of the overtaken bicycle. For the purposes of this paragraph, a ‘safe distance’ means a distance that is sufficient to prevent contact with the person operating the bicycle if the person were to fall into the driver’s lane of traffic. This paragraph does not apply to a driver operating a motor vehicle:
(A) In a lane that is separate from and adjacent to a designated bicycle lane;
(B) At a speed not greater than 35 miles per hour; or
(C) When the driver is passing a person operating a bicycle on the person’s right side and the person operating the bicycle is turning left.
(b) The driver of a motor vehicle may drive to the left of the center of a roadway to pass a person operating a bicycle proceeding in the same direction only if the roadway to the left of the center is unobstructed for a sufficient distance to permit the driver to pass the person operating the bicycle safely and avoid interference with oncoming traffic. This paragraph does not authorize driving on the left side of the center of a roadway when prohibited under ORS 811.295, 811.300 or 811.310 to 811.325.
(c) The driver of a motor vehicle that passes a person operating a bicycle shall return to an authorized lane of traffic as soon as practicable.
(2) Passing a person operating a bicycle in a no passing zone in violation of ORS 811.420 constitutes prima facie evidence of commission of the offense described in this section, unsafe Enrolled Senate Bill 108 (SB 108-BCCA) Page 1 passing of a person operating a bicycle, if the passing results in injury to or the death of the person operating the bicycle.
(3) The offense described in this section, unsafe passing of a person operating a bicycle, is a Class B traffic violation. (Maximum fine of $360.)
Features of New Law
The new law, which will go into effect on January 1, 2008, attempts to use the ”safe distance” concept rather than a specific distance, and defines “safe distance” as the distance “sufficient to prevent contact with the person operating the bicycle if the person were to fall into the driver’s lane of traffic.” While a number of states have legislated specific passing distances, the most common of which is three feet, the new law uses the bicyclist’s own body as a distance measure, thereby providing the motorist with a useful gauge to protect the bicyclist from the possibility of a mishap that might place the bicyclist under the wheels of the passing motor vehicle.
Specific exclusions from the new law are traffic lanes next to a bicycle lane, speeds below 35 mph, or when the bicyclist is turning left. The 35 mph speed limit was a compromise to allow city transit services to travel more closely to bicyclists in a low speed urban environment.
The new law also attempts to limit the passing maneuver to instances where the roadway is unobstructed in an attempt to avoid the situation where drivers are tempted to “squeeze” by bicyclists on a crowded roadway. The law makes clear its intention not to authorize passing when it is otherwise prohibited by law, and states that if the passing maneuver in a no-passing zone causes injury or death to the bicyclist then such an act is “prima facie” evidence of the offense, which means that no further proof is necessary to establish the elements of the violation. However, the new law does not specifically prohibit passing a rider or group of riders in a no passing zone; instead it attempts to hold a driver responsible for an attempt to pass in a no-passing zone which results in an injury accident.
ORS 811.420 (Oregon’s general passing law) prohibits “passing” in a no-passing zone except
“when an obstruction or condition exists making it necessary to drive to the left of the center of the roadway provided that a driver doing so shall yield the right-of-way to all vehicles traveling in the proper direction upon the unobstructed portion of the roadway within a distance that would constitute an immediate hazard.” ORS 811.420(3)(b)
The “condition” “making it necessary” to cross the center line is the same provision bicyclists have pointed to as legal justification for the maneuver that bicyclists typically encourage motorists to use to get around a slower group of riders. Since bicyclists do not occupy the entire lane, motorists are able to pass bicyclists by waiting until the roadway ahead is unobstructed and then moving only slightly over the center no-passing line in order to give a wide berth and get around the group of riders. Usually this is a much-preferred alternative to the situation where a motorist angrily holds back from going around the riders when the traffic lane is too narrow for both riders and the motorist. It is also far preferable to the situation where the motorist is tempted to squeeze by a group of riders without crossing over the center line because the motorist is afraid that if they cross the center line, then they are passing in a no-passing zone. If the rider or group of riders is the “condition” “making it necessary to drive to the left of center of the roadway” then so long as the road ahead is unobstructed, many riders believe it is far better to have the motorist pass than to follow behind impatiently, or be tempted to “squeeze through” without crossing the center line.
Since the new law states that the prima facie case is a result when an injury occurs after a “violation of ORS 811.420″ then it could be argued that the only time the new law prohibition is violated is when it was unnecessary for the motorist to go around the riders in a no-passing zone or when the roadway ahead is not sufficiently clear, in which case ORS 811.420 would be violated, and if an injury occurs, then the motorist would be held accountable for violation of the new law.
Though one might wish that the language of the new law is more clear, at least the intent is to improve the safety for riders. If the intent of the new law is to prohibit motorists from moving slightly over the center line in no-passing zones to go around a group of riders then I believe that this new law will create even more confusion and be cause for increased bicycle/motorist tensions when groups of riders are overtaken by motorists.
Experience has demonstrated that there seems to be a lack of uniformity among law enforcement officers about whether motorists may ever cross the center line to pass a group of slower riders. If the new law is interpreted to allow a motorist to make such a maneuver when it is safe to do so (i.e., the roadway ahead is unobstructed) and the motorist provides sufficient passing distance to the bicyclists as required by the law (enough room so that if the bicyclist falls over there will be no contact) then the new law does at least provide a new standard where none existed over how much room to give riders when passing. It would be unfortunate if the new law is interpreted to prohibit ever allowing a passing motorist to touch the lane divider line in a no-passing zone in order to provide a safe berth to a group bicyclists. Any bicyclist who has ever had an impatient motorist try to squeeze by in a narrow lane wants to avoid the experience in the future.
What About When the New Bicycle Passing Law Does Not Apply?
In instances where the new law is inapplicable, such as where the posted speed limit is less than 35 mph, then the general Oregon passing law will still apply to bicycles being passed by motorized traffic. ORS 811.410 is the general law governing passing on the left of another vehicle (including bicycles). It states in relevant part:
811.410 Unsafe passing on left; penalty. (1) A person commits the offense of unsafe passing on the left if the person violates any of the following requirements concerning the overtaking and passing of vehicles:
(a) The driver of a vehicle that is overtaking any other vehicle proceeding in the same direction shall pass to the left of the other vehicle at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.
* * *
(c) The driver of a vehicle shall not drive to the left side of the center of the roadway in overtaking and passing a vehicle proceeding in the same direction unless the left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit the overtaking and passing to be completed without interfering with the operation of a vehicle approaching from the opposite direction or a vehicle overtaken.
* * *
While the “general” passing law in ORS 811.410 fails to provide the new “fall over” safe passing distance contained in ORS 811.065, it nevertheless specifies that the passing vehicle must give a “safe distance” to the passed vehicle (bicycle). Where motorists “buzz” a bicyclist or even hit the rider when overtaking and passing the “general” rule of ORS 811.410 provides a basis for a traffic citation, even if the new bicycle passing law does not apply because of speed or where the bicyclist is in a bicycle lane. In instances where the motorist intentionally “buzzes” the bicyclist then stronger legal measures are called for, like Reckless Driving, Reckless Endangerment, Menacing or Assault (See the section on Motorist Harassment); but where the actions are the result of a mistake then the “general” law can still be the basis for a citation by law enforcement or a citizen violation prosecution. A citation for Careless Driving is also likely warranted in most unintentional “close passing” incidents.
“Following Too Close” and Pace Lines
The final portion of SB 108 is an amendment to the “following too close” statute in order to allow bicyclists to lawfully ride in a pace line. The “following too close” law, ORS 811.485, will now specifically apply only to “motor” vehicles, excluding bicycles from its scope. While some members of the law enforcement community may be displeased that bicyclists are singled our for more favorable treatment than other vehicles, the new law does make a forceful statement that bicycle pace lines where groups of bicyclists are “taking the wheel” of the rider in front in order to draft and reduce wind resistance, are doing so with the legal blessing of the vehicle code.
Other “Passing” Related Provisions
It is also important to mention that the law “Failure of slower driver to yield to overtaking vehicle”, ORS 811.425, should never be applied to bicyclists. That law provides:
(1) A person commits the offense of failure of a slower driver to yield to overtaking vehicle if the person is driving a vehicle and the person fails to move the person’s vehicle off the main traveled portion of the highway into an area sufficient for safe turnout when:
(a) The driver of the overtaken vehicle is proceeding at a speed less than a speed established in ORS 811.105 as prima facie evidence of violation of the basic speed rule;
(b) The driver of the overtaking vehicle is proceeding at a speed in conformity with ORS 811.105;
(c) The highway is a two directional, two-lane highway; and
(d) There is no clear lane for passing available to the driver of the overtaking vehicle.
(2) This section does not apply to the driver of a vehicle in a funeral procession.
(3) The offense described in this section, failure of a slower driver to yield to overtaking vehicle, is a Class B traffic violation.
This law is intended to apply to the situation where a slow-moving vehicle, like a truck pulling a horse trailer, is clogging the entire lane at a slower speed than normal traffic, and there is no clear lane for passing available to overtaking drivers. The law is inapplicable to bicyclists because of the hybrid relationship between bicycles and motor vehicles in sharing the same lane. When a slow-moving bicyclist is overtaken by a motor vehicle, it is almost always possible for the motor vehicle to pass the bicyclist by staying within the travel lane or slightly crossing over the lane divider line. In this instance, the bicycle is a “condition” “making it necessary to drive to the left of the center of the roadway” which is allowed by ORS 811.420 so long as the roadway is unobstructed ahead.
If the slow-moving vehicle law were interpreted otherwise, it would require a bicyclist to go off of the road onto the uneven or gravel-covered shoulder to allow overtaking vehicles to pass, a dangerous situation. Instead, the bicyclist who is lawfully sharing the lane is merely required to ride as far to the right as practical – ORS 814.430 uses the term “practicable” – truly sharing the lane with the overtaking motorist. Unlike a large vehicle with a trailer behind it, the bicycle does not occupy a full lane or require moving off of the “main traveled portion of the highway” in order to allow a motorized vehicle to overtake and pass.