|
BICYCLES AND THE LAW
Some Thoughts on the 2009 Legislative Session and The Demise (Again) of
Idaho-Style Stops and Vehicular Homicide Laws
By Ray Thomas
Oregon bicycle and pedestrian lawyer
(This article is not a reflection of any organizational or individual
view besides my own. The purpose is to present a personal account of
why it is important, and maddening, to work with the Oregon Legislature.)
Over the last decade, I have spent a considerable amount of time,
mostly through the Bicycle Transportation Alliance (BTA) Legislative
Committee and sometimes with the Oregon Trial Lawyers Association (OTLA)
Legislative Committee in drafting and working to support various legislative
proposals. These efforts have usually started after an experience
in court representing pedestrians or bicyclists demonstrated that a
particular Oregon law was unfair. This year, as the 2009 legislative
session begins to wind down, it may be helpful to review some of our
past efforts to better understand how we emerged without passing any
of our primary bicycle and pedestrian efforts, even though the legislature
and governor all claim to be highly supportive of non-motorized roadway
users.
The Case of the Injured Highway Worker
In 1995 our office represented an Oregon Department of Transportation
worker who was run down while removing wood from a roadway, when an
approaching motorist guessed wrongly which direction the worker would
take to walk the wood to the other side of the freeway. The collision
caused multiple fractures and other serious injuries to the worker. When
we took the injury case to court, a jury instruction stated that a
pedestrian is required to yield the right-of-way to motor vehicles
outside a crosswalk. Oregon law seemed to turn highway workers
like our client into road kill. After the jury greatly discounted
our client’s damages due to the effect of the statute, we teamed
up with the father of a surveyor who had recently been killed in a
roadside collision to introduce a new law which would provide right-of-way
for highway workers. Our efforts were successful and in 1997
the new law, ORS 811.233, “Failure to Yield Right of Way to Highway
Worker”, became effective and has served as a legal counterbalance
to the requirement in ORS 814.040 (1)(b) requiring that pedestrians
yield the right of way to motor vehicles except in a crosswalk. There
was no organized opposition to our bill and we were encouraged to see
that the legislative process could be so positive. Of course
not all legal reforms go as smoothly as the highway-worker bill, largely
because in politics most law changes are perceived as coming at some
other group’s expense.
Bicycle and Pedestrian Legislative Efforts Come of Age
Over the last decade, bicycle and pedestrian advocates have waded into
legislative waters primarily through the Bicycle Transportation Alliance
(BTA) and Willamette Pedestrian Coalition (WPC). In the beginning,
some of the legislative improvements were relatively easy to get
passed. For example, the original concept of a Bicycle Lane
included the requirement that if one was available, bicyclists had
to ride in it, forever. No legal provision was made for the
bicyclist to ever ride out of the lane, basically creating considerable
legal risk anytime there was debris or a truck blocking the lane. Doug
Parrow (current chair of the BTA Legislative Committee) worked with
BTA lobbyist (now Executive Director) Scott Bricker to list the situations
when a rider would likely need to leave the bicycle lane, including
left-turn maneuvers on multilane roadways. We then drafted
this provision into statutory language, took photos of street scenes
showing its application, and submitted it as a bill to the Legislature,
which resulted in passage in 2005 of what is now ORS 814.420, which
allows bicyclists to ride outside the bike lane under certain conditions.
We were similarly successful in removing the ORS 811.415 prohibition
on bicyclists passing on the right in regular vehicle lanes by modifying
the statute to allow passing on the right when safe under existing
conditions (bringing Oregon in line with rider practices the world
over).
Some Efforts Unsuccessful
However, we were unsuccessful in our efforts to remove the nasty surprise
contained within ORS 814.410, which imposes a “walking speed” limit
on bicyclists’ rights of way in sidewalks and crosswalks. Our
efforts in 2005 and 2007 to modify this requirement and raise
the limit to six miles per hour or “a reasonable speed” went
nowhere. Time and time again, we collided with legislators’ memories
of bicyclists “darting out of nowhere” like urban deer.
We could just not get past their reservations about allowing bicyclists
to go even faster around unsuspecting motorists.
Success with Innovative Legal Concepts
Sometimes we were surprised by how receptive the Legislature was to
innovative legal concepts. In 2007, we introduced a European-derived
safety concept, the “Vulnerable User” concept into American
traffic law. Our idea was to use the vulnerability of non-motorized
users as a reason to provide enhanced penalties for careless drivers
who cause serious injuries. When we were advised that the 2007
legislature was going to be an inhospitable forum for creation of
new crimes, Doug Parrow retooled the Oregon Vehicle Code’s
Careless Driving provision to include enhanced noncriminal penalties,
including community service and suspension of driving privileges,
that were probably substantially more serious than what would otherwise
apply to a misdemeanor or other lesser crime.
As our measure proceeded through the legislative process, we heard
time and time again from legislators that it was the grassroots support
from bicyclists and pedestrians throughout the state, particularly
in rural areas, that demonstrated the broad-based support for our legislative
agenda. Were it not for the steady stream of phone calls, faxes,
and emails from concerned constituents, our efforts would have been
easier to ignore. As it turned out, we gained almost universal
support for our Vulnerable User measure; its passage served as a text-book
worthy example of how an innovative legal measure can become law when
effectively presented. When the time came for hearings on the
Vulnerable User law, the BTA and Willamette Pedestrian Coalition members
presented real-life stories about how dangerous drivers had caused
terrible injuries with almost no consequences. Hard work by injured
people and their families demonstrated to the legislators the importance
associated with our proposals and our community benefitted greatly
from their dedication and hard work.
Idaho-Style Yield Law, an Idea Whose Time Has Not Quite Come
In 2003, the Oregon House passed the Idaho-style stop measure proposed
by then Representative Floyd Prozanski, only to have it die in Committee
in the Senate. In 2008, the BTA Legislative Committee examined
the concept again. I studied and wrote an article about the good
performance of the law in Idaho since first passed in 1982. We were
referred to a researcher who had studied the operation of the law;
and he agreed to write a letter summarizing his findings, which were
part of a University of California School of Public Health “longitudinal
survey” demonstrating that there had been no discernable increase
in injuries or deaths as a result of Idaho’s change from stop
to yield. (See Ray Thomas: "Are We Ready for an Idaho
Style Bicycle Yield Law?", Oregon Cycling, December 2008).
As we worked through possible strategy for reintroducing the Idaho-style
measure, it became clear that we would have to first deal with resistance
to the project within our own community. Some cyclists rejected
the Idaho-style yield as a dangerous modification of traffic law that
would lead to more injuries and upset by motorists about special accommodations
made for bicyclists. However, after collecting supporting material
from Idaho public officials and drafting a change in the failed 2003
bill that would allow local jurisdictions to require stops by bicyclists
at designated dangerous intersections, we secured sufficient support
from the BTA board and within the bicycling community to more forward.
As the financial meltdown of 2008 spread to Oregon and the controversy
surrounding Portland’s bicycling-friendly mayor dominated the
news, we felt the lack of publicity or media attention the proposal
might just be a good thing. However, “flying below the
radar” with the Idaho-style proposal ended the day before its
first hearing in front of the House Transportation Committee when at
least one television news station reported that the proposed law would
eliminate bicyclists’ legal requirement to stop at both stop
signs and traffic lights, a gross misstatement of the actual bill. A
story in the Oregonian newspaper contained a quote from the Portland
police emphasizing that all bicyclists should follow the traffic law
also seemed to suggest that the police and the City of Portland opposed
the change. Then, at the legislative hearing, the City of Eugene,
Oregon League of Cities and the Oregon Trucking Association all testified
against the Idaho-style proposal for liability and safety reasons. While
the City of Portland sent a representative to correct the record and
state that the City was neutral on the measure, the damage was done.
At least one news editorial included the law as an example of foolishness
being pursued in Salem while the State faced an economic crisis. Then,
when a Republican legislator proposed that bicyclists be required to
register and pay fees like other vehicles prompted a firestorm of angry
responses from bicyclists, the willingness of legislators to take a
chance on an innovative new measure like the Idaho-style yield evaporated. We
were told that unless we could demonstrate sufficient votes to actually
pass the bill in the House, it would die in committee. When we
tallied the votes, we realized that we were dead before arrival.
While the “laying low” strategy with the Idaho style yield
kept us from the public eye (and away from likely criticism by conservative
talk show hosts and newspaper editors) we also failed to perform the
necessary groundwork in order to line up support. The inaccurate
reporting in the news media coupled with initial resistance from city
representatives and the trucking industry made legislators who were
leery of the bill in the first place back away from support. Then
when the bill was used as an example of legislative dithering its fate
was sealed, at least for this session.
One good result of our hard work was creation of a collection of materials
in support from Idaho officials and the public health study. We
have been contacted by representative from Virginia, Washington D.C.
and Arizona who have all made use of our collection. For those
of us who believe it is important to change a bad law rather than ignore
it, we will continue to advocate for bringing Idaho-style yields to
Oregon. In the meantime, we hope our materials will be useful
to folks in other states.
A Tough One To Lose – Vehicular Homicide
In the closing days of the 2007 legislature, bicyclist Tim O’Donnell
was killed by an overtaking motorist as he participated in a group
ride in rural Washington County. His widow, Mary O’Donnell,
rolled up her sleeves and served as an inspiration to those of us in
the bicycling community when she appeared at the legislature to support
a vehicular homicide law to hold dangerous drivers accountable. While
the bill was introduced too late in the 2007 session, we redrafted
it and introduced it in the 2009 legislature in an attempt to take
Oregon’s name off the list of four states without a vehicular
homicide law. We felt that the vehicular homicide statute was
an important one because we wanted to create some sort of chargeable
offense in situations where a driver negligently kills someone after
deciding to drive without insurance or a license, while impaired from
drugs or distracted by fiddling with an electronic device. We
felt the law was important because while Oregon has the crime of Criminally
Negligent Homicide, the standard of proof for this crime requires a “gross
deviation” from reasonable care, a standard amounting almost
to recklessness. We wanted to provide a charging option for prosecutors
(and remove their excuses for not doing anything) to cover situations
where a driver negligently kills someone after deciding to drive in
spite of a situation which should have kept them from ever putting
their car keys into the ignition. Because bicyclists and pedestrians
are particularly vulnerable to motorists who drive thoughtlessly and
then fail to have insurance to pay damages for the consequences. Taking
the driver’s license away from a motorist who is already not
licensed or insured does little to make any change or protect us.
Time and time again, Mary O’Donnell and her excellent friend
and advocate Wendy Kroger wrote letters, made personal visits, attended
early morning meetings and generally did whatever they could to help
our effort. However, in spite of their best efforts, the law
was not to be, at least not in 2009. A lack of funding to pay
for the supervision of offenders coupled with legislator misgivings
about the complexity of a new crime combined to deprive us of sufficient
votes to move the bill this session. In a typical gesture, those
of us who had worked in the bill received thank you notes from Mary
and Wendy for having taken the bill this far. This was a tough
one to lose.
What Lessons?
As we approached the 2009 legislative session, it seemed like we were
poised to make major progress. Then, the financial crisis unfolded
and legislators became concerned about costs and the appearance of
special treatment for bicyclists. The move by conservative
legislators to require bicycle registration created such loud howls
of protest that, while the registration measure never went anywhere,
its caused some hard feelings and reportedly evaporated support from
rural legislators, whose constituents already viewed bicycling as
a recreational pastime of the city elite. We also failed to
anticipate the intensity of the negative reaction to the Idaho-style
yield measure by legislators who instinctively felt it was a safety
problem no matter what the studies showed.
If we could start the legislative session over again, we would also
develop our materials and provide our proposed measures to Legislative
Counsel earlier in the session. We would also make contact with
the groups that might support or at least stay neutral on our measures
so that press reports would not be the first presentation of our message. Finally,
we could have done a better job in organizing our statewide bicycling
community, particularly folks in the districts of key legislators,
so that constituent voices would have been more difficult to ignore.
But the fact is that in 2009, the legislative agenda was just too
ambitious for the times. The Idaho-style yield and vehicular
homicide laws required more support than we were able to muster. And,
because we had taken on such an ambitious legislative agenda, we failed
to include several other legislative ideas that had merit, but were
of less consequence. While we have been assured that the interim
legislative session or the 2011 session may provide us with a more
hospitable reception in Salem, the fact is that we failed with our
best efforts to produce legislation.
The two modest legislative items I now wish I had pursued more forcefully
may well have passed this session, but now will have to wait. In
the meantime however they are:
- Amend the mandatory bike lane usage law (ORS 8214.420) to provide
that bicyclists must only use the bicycle lane when they are going
slower than the speed of traffic (which is similar language to the
law that requires us to ride as far to the right as practicable when
we are going slower than the normal speed of traffic ORS 814.430). This
way we do not have to ride in bike lanes if there are no other vehicles
in the vicinity. If no one is around why ride over next to
the parked car doors on pavement that is covered with grit (wide
swiftly moving tires grind up and blow the stuff out of the tire
path – that’s where we like to roll). This is a
change also desired by faster riders who are able to keep up with
the speed of traffic.
- Streamline and simplify the procedure allowing citizens to prosecute
traffic violations in court contained in ORS 153.058. While
the law allows a regular citizen without a lawyer to prosecute a
traffic violation in court, the process is not well understood by
court staff and the statutes are confusing. While
the substance of the law will not be changed, updating the language
of the statute to make it more straight-forward will make it easier
for both citizens and court staff to use. We already have law
enforcement support for this change and there is likely to be no
organized opposition as it truly comes at no one’s expense.
Conclusion
In the bicycle community, we can be proud that we have included
bicycles in the traffic-law landscape. We can use the good work
from 2009 to continue to fight on the traffic measures we introduced,
and hopefully next session we will also pursue less ambitious proposals
to change the law. While some bicycle advocates were dismayed
about the impolitic tone employed by some angry bicyclists about the
registration law, at least our voices were heard. I guess I wish
everyone would always use a respectful tone toward motorists and legislators,
but we have always been a somewhat raucous group of opinionated, independent
folks. Were it otherwise, we probably would not be the sort willing
to go out and mix it up on the streets with the cars.
|
