By Ray Thomas, Portland bike lawyer
The two recent fatalities in October of 2007 resulting from large trucks being driven over bicyclists in a marked bicycle lane illustrates that we have a long way to go before bicyclists are safe to ride on the street, even in bicycle lanes. The “right hook,” caused by a right-turning motorist who fails to see and provide the right-of-way to approaching cyclists, is one of the most common accident scenarios for bicyclists. These collisions also illustrate the mistaken ideas many folks have over the law and safe driving practices for motorized and non-motorized traffic.
The Law of Bike Lanes
Oregon law grants bicyclists in bicycle lanes the right-of-way over motorized traffic as if the bicycle lane were another traffic lane, which it is – except that it is a hybrid since it is reserved for bicycles. Oregon law quite clearly grants a right-of-way to bicyclists in, and defines which vehicles can use, bike lanes:
ORS 811.050 states:
“811.050 Failure to yield to rider on bicycle lane; penalty. (1) A person commits the offense of failure of a motor vehicle operator to yield to a rider on a bicycle lane if the person is operating a motor vehicle and the person does not yield the right of way to a person operating a bicycle, electric assisted bicycle, electric personal assistive mobility device, moped, motor assisted scooter or motorized wheelchair upon a bicycle lane.
(2) This section does not require a person operating a moped to yield the right of way to a bicycle or a motor assisted scooter if the moped is operated on a bicycle lane in the manner permitted under ORS 811.440.
(3) The offense described in this section, failure of a motor vehicle operator to yield to a rider on a bicycle lane, is a Class B traffic violation.”
A Class C traffic violation results in a maximum fine of $360.00.
Oregon law allows motor vehicles to operate on a bicycle lane but only when making a turn or entering or leaving an alley, private road, or driveway. However, the law clearly requires motor vehicles to first yield the right-of-way to bicyclists occupying the bike lane, just as vehicles changing lanes on a multi-lane roadway must first yield the right-of-way to other vehicles occupying the lane the driver would like to enter.
ORS 811.440 states:
811.440 When motor vehicles may operate on bicycle lane. This section provides exemptions from the prohibitions under ORS 811.435 and 814.210 against operating motor vehicles on bicycle lanes and paths. The following vehicles are not subject to ORS 811.435 and 814.210 under the circumstances described:
(1) A person may operate a moped on a bicycle lane that is immediately adjacent to the roadway only while the moped is being exclusively powered by human power.
(2) A person may operate a motor vehicle upon a bicycle lane when:
(a) Making a turn;
(b) Entering or leaving an alley, private road or driveway; or
(c) Required in the course of official duty.
(3) An implement of husbandry may momentarily cross into a bicycle lane to permit other vehicles to overtake and pass the implement of husbandry.
(4) A person may operate a motorized wheelchair on a bicycle lane or path.
(5) A person may operate a motor assisted scooter on a bicycle lane or path.
(6) A person may operate an electric personal assistive mobility device on a bicycle lane or path.”
Evolution of the Bicycle Lane Law
The bicycle lane law also mandates that bicyclists use a bicycle lane when one is available. This means that if a bicyclist is outside the bicycle lane without legal justification then the bicyclist can be ticketed. In 2005, the Bicycle Transportation Alliance Legislative Committee succeeded in convincing the legislature to change the bicycle lane law to provide legal recognition of the circumstances when a bicyclist should be allowed to leave the bicycle lane, such as when attempting a left turn or avoiding debris or a vehicle blocking the bicycle lane.
ORS 814.420 states:
814.420 Failure to use bicycle lane or path; exceptions; penalty. (1) Except as provided in subsections (2) and (3) of this section, a person commits the offense of failure to use a bicycle lane or path if the person operates a bicycle on any portion of a roadway that is not a bicycle lane or bicycle path when a bicycle lane or bicycle path is adjacent to or near the roadway.
(2) A person is not required to comply with this section unless the state or local authority with jurisdiction over the roadway finds, after public hearing, that the bicycle lane or bicycle path is suitable for safe bicycle use at reasonable rates of speed.
(3) A person is not in violation of the offense under this section if the person is able to safely move out of the bicycle lane or path for the purpose of:
(a) Overtaking and passing another bicycle, a vehicle or a pedestrian that is in the bicycle lane or path and passage cannot safely be made in the lane or path.
(b) Preparing to execute a left turn at an intersection or into a private road or driveway.
(c) Avoiding debris or other hazardous conditions.
(d) Preparing to execute a right turn where a right turn is authorized.
(e) Continuing straight at an intersection where the bicycle lane or path is to the right of a lane from which a motor vehicle must turn right.
(4) The offense described in this section, failure to use a bicycle lane or path, is a Class D traffic violation.
The 2005 legislative change to the bicycle lane law legalized riders’ real world riding behavior.
What Has Happened To Us?
Experienced bicyclists know that the bicycle lane creates inevitable transition between motorists and bicyclists every time a motorist crosses over the bicycle lane. Since most motorists did not learn in driver’s training classes back in high school about bicycle lanes, there has been a slow learning curve for drivers in figuring out how to drive in league with bicycles. Driver reactions range from attempting to pretend that bicycle lanes do not even exist to excessive efforts at avoiding ever placing a tire on a bicycle lane divider line. Portland and other cities have attempted to assist drivers by creating broken painted lines to suggest places where motorists may merge over and across the bicycle lane in order to make a right turn. Some bicycle lanes also continue the broken painted line across intersections. Finally, some bicycle lanes now have bicycle collector areas modeled on the Netherlands model at the front of several test intersections in the Portland area. These “bike boxes” place bicyclists at the head of the line of stopped motorists for visibility.
It is clear that bicyclists frequently have the experience of motorists either failing to see them or refusing to yield the right-of-way in the bicycle lane. As I sometimes joke during presentations about bicycle law, if bicycles in bike lanes weighed the same as locomotives on railroad tracks (where the legal right-of-way principles are quite similar) there would be fewer motorists cutting us off because the result would be catastrophic for the motorist. However, the laws of physics (mass and velocity) dictate that when we get cutoff or pinched off in a bicycle lane we slow down and try to avoid painful contact with a car. Recent events have shown that when the bicycle lane system works well it works very well, but when a large truck rolls over the bicycle lane oblivious to the presence of a bicyclist, the results are horrific.
Oregon Right Turn Law For Vehicles
Some law enforcement experts, notably the folks in Portland Police Bureau Traffic Division, suggested in October 2007 that Oregon adopt the California model which requires motorists to move over and onto the bicycle lane in the last 100 feet before the right turn. This “California rule” proposal has met with some resistence by bicycle community leaders who point out that maintaining a clear bicycle lane is important for bicyclists who want to go straight in an intersection where a line of stopped right turning cars would block and cork the intersection if they were required to drive onto the bicycle lane before turning.
Oregon law requires that vehicles move as close to the curb as possible when approaching or making a right turn:
ORS 811.355 states:
811.355 Improperly executed right turn; penalty. (1) A person commits the offense of making an improperly executed right turn if the person is operating a vehicle, is intending to turn the vehicle to the right and does not proceed as close as practicable to the right-hand curb or edge of the roadway:
(a) In making the approach for a right turn; and
(b) In making the right turn.
(2) The offense described in this section, improperly executed right turn, is a Class B traffic violation.
ORS 801.155 defines a “Bicycle Lane” as “part of the highway adjacent to the roadway.” Therefore, Oregon law tells the motorist to move as close to the right-hand curb OR edge of the roadway as possible. My earlier view of this statute failed to recognize that the bike lane is separate from the roadway and several of my conclusions in my previous article on this topic were also incorrect. Thanks to PDOT’s Greg Raisman for pointing this mistake out to me. Oregon law requires the motorist to move over next to but not on top of the bicycle lane. Thus it appears that when “making the approach for a right turn” motorists are not supposed to move over and top of the bike lane while waiting to make a right turn. Certainly, one of the laudable goals of bicycle lanes was to allow bicyclists to pass stopped cars and not wait in the exhaust fumes of idling cars blocking the bike lane. However, the problem for riders is that motorists may not see the rider when they make the actual turn to the right over the bike lane.
Proponents of the “California Rule” suggest changing Oregon law to require motorists to move onto the bike lane 100 feet before the turn. Bicyclists who expect to be able to proceed straight on a bicycle lane next to a line of right turning motorists will be deprived of that opportunity if the law is changed to require rightward movement of vehicles before the right turn. Is this too much of a price to pay?
The Push and Pull of Bicycle Lanes
Bicycle lane advocates have taken a historic step in creating and expanding Oregon’s bicycle lane network. Bicycle lanes have created considerable tension with motorists who often blame bicyclists for removal of a potential traffic lane or on-street parking. When motorists see bicycle lanes that are empty of bicyclists on a roadway choked with backed up automobiles, it frustrates them that facilities have been created “at motorists’ expense” but then not used by bicyclists.
On the other hand, bicyclists take a somewhat possessory attitude toward bicycle lanes and sometimes take offense when motorists dare to drive on top of the bicycle lane. Repeated instances of being car-doored, encountering trucks and cars parked upon the bicycle lane, and episodes where left and right turning motorists disregard visible cyclists in the bicycle lane have led to many minor accidents and upset bicyclists, and, of course, there has not yet been a single motorist injured by a bicyclist in a bicycle lane. The bicycling community feels like it pays with its own skin for the mistakes of motorists.
In 2007 when the legislature was considering various options for bicycle law improvement, I had the idea that the law should make clear that motorists and bicyclists are supposed to cooperate in a fluid and dynamic fashion in sharing the roadway. Since the Oregon statute does not allow cars to use the bike lane to go around left turning motorists, I suggested that Oregon law be changed to allow the practice, so long as the motorist first yielded to bicyclists in the bicycle lane. This proposal met with the same reservation that the proponents of the “California rule” met with from the bike community in that bicyclists were worried that adding reasons for cars to be in the bike lane increased the danger for bicyclists. The proposal was dropped and current Oregon law continues to subject motorists to a potential ticket if they move into a bike lane to move around a left turning motorist.
The “Blind Spot” is No Excuse for Turning Without Knowing What is Under or Beside Your Vehicle
One thing that is clear is that motorists do have the obligation to yield to bicyclists in bicycle lanes. And large trucks must have modern mirror systems to provide a view of smaller objects like bicycles to the right of their vehicles. Careful observation through the “shoulder check” for bicyclists and pedestrians is necessary before any turn. So long as the “blind spot” is an accepted description of the area that is more accurately titled the “Limited visibility zone” there will be acceptance of an unacceptable driving practice. If a driver cannot see to the right, the driver must either improve or change their mirror system, or move over in the cab to look to the right and see what is out there. When a truck driver takes their truck or trailer into a ditch or over a stationary object while turning no one ever hears the excuse that the mistake was caused by the “blind spot”. The reason is that there is no good reason for driving where one can’t see what they are driving over. Solving the Fatal Right Hook begins with individual responsiblity by drivers in making their vehicles fully roadworthy wich means using convex mirror systems to disclose surroundings. If you can’t see what is going to be under your truck before you start moving, don’t move until you know what you may be driving over. Of course, bicyclists must also ride defensively and it is important to recognize that some motrorists may not see you, and some motorists may not stop at stop signs. BUT the “blind spot” excuse should be removed from our driving vocabularies- we will all be safer if every driver takes responsiblity for the areas beside and under their vehicles.