Bicycle & Skate Law
We Know We Have a Right to the Road, But What Does That Mean?
by Ray Thomas
Ray Thomas is a Portland bike lawyer.
Every experienced Oregon bicyclist knows that in principle we have some right to the roadway. After all, we were here first. It was our Good Roads Movement that created the roadways upon which the earliest internal combustion-powered vehicles proceeded, and we graciously shared the only lane. If that history were reversed, I suspect that motor vehicle drivers would not have been as gracious in allowing us to have a share of the traffic lane. While bicyclists believe in the principle that we have a right to the road, it is difficult to apply that right when the user numbers and laws of physics (mass and velocity) place us in minority-shareholder position in the traffic lane. This article concerns our right to the road when there is no bicycle lane or other separate facility for bicyclists.
The Law on Bicyclists' Rights to the Road
The Oregon "Bicyclist Bill of Rights" is contained in ORS 814.430, and is reproduced at the end of this article in its entirety. Basically, ORS 814.430 provides that when operating a bicycle on the roadway at "less than the normal speed of traffic" the bicyclist must ride "as close as practicable" (or, practical) to the right curb or edge of the roadway, or to the left curb or edge of the roadway if riding on a one-way street. In analyzing our rights it is important to "think like a lawyer" and recognize that which is not taken away is granted. Thus, if you are proceeding at the normal speed of traffic, you have a right to take the entire lane. ORS 814.430 (2)(e) also provides that you can ride "twoup" or side-by-side.
ORS 814.430(2) provides a number of "exceptions" to the general requirement that a bicyclist must ride to the right. A bicyclist can take a larger portion or even the entire lane when passing another bicycle or vehicle (ORS 814.430(2)(a)); when preparing to make a left turn (ORS 814.430(2)(b)); or when necessary to avoid a list of conditions which make the continued operation along the curb or roadway edge unsafe, including "fixed or moving objects, parked or moving vehicles, bicycles, pedestrians, animals" and then the lawyer's favorite, "other conditions that make continued operation along the right curb or edge unsafe". ORS 814.430(2)(c).
The right to take the entire traffic lane is qualified by the universal obligation of all roadway users to exercise "due care". The duty to exercise due care is a basic reasonableness requirement. If for example, a bicyclist suddenly pulls out right in front of a truck to while moving to the left to make left turn, causing the truck driver to try to make an emergency stop, and a collision results, any jury would have to take into account the bicyclist's failure to reasonably gauge the approach speed and distance of the larger vehicle. On the other hand, "due care" also applies to motorists, who are required by law to honor the bicyclists' need to take part of all of the lane, even if it means the motorist must slow down or stop.
Bicyclists' historic right to a share of the traffic lane has survived in part because it actually facilitated smooth traffic flow as bicyclists have a narrow width and therefore can occupy a traffic lane at the same time as a motor vehicle. That narrow width is also the reason bicyclists are not subject to slow moving vehicle laws that govern farm implements, trailers or other slow vehicles that plug the vehicle lane. (See article "Bicycles Not subject to Oregon's Slow Moving Vehicle Law", contained in Bicycling Articles section of www.stc-law.com, our law firm web site.) Thus, while bicyclists do not have to use an available turn-out to allow faster motorists to pass, bicyclists must nevertheless maintain their positions as close as practicable (or practical) to the right side of the roadway.
Where To Ride
In my younger and more militant days, I used to follow the belief of "Vehicular Cyclists" that the safest place to ride was in the roadway. In those days, shoulders were infrequently swept and many of us believed that if we did not take our right to a fair share of the roadway, we would lose our legal right to use it. Roads without swept shoulders or with high-speed descents require a rider to take enough room to maneuver, but on high-speed roadways with good shoulders (such as Highway 30 north of Portland), the roadway shoulder presents an attractive riding option as evidenced by the many riders who use it for training rides.
Of course, many two-lane rural roads have no shoulder whatsoever and the bicyclist has no option but to ride in the roadway, as is their legal right. But, when traveling at less than the normal speed of traffic, many bicyclists prefer to ride off of the roadway on a paved shoulder even though most paved shoulders do not get swept clean by the tires of passing motorists like the main travel section on the roadway.
Over the years my view of riding on a wide shoulder has changed. My bicycling friend Bob Mionske, Bicycling Magazine columnist and author of Bicycles and the Law, and I have spent many pleasurable hours on training rides. He often chooses to ride near the right side of the paved shoulder. When I rode on the shoulder where he rides, at first I felt squeamish about the pebbles and road debris frequently encountered that far off of the roadway. I guess I had convinced myself that I would have flats or some other unpleasant experience if I rode that far off to the side of the road.
And there was also the "attitude thing". After I realized I would not lose my legal right to the road by riding on the shoulder, following Bob's lead that far off of the road gave me a new appreciation of how mellow it can be when the bicyclist stays far to the right, even on a busy road.
For a couple of months on my training rides, I tried riding that far off the roadway along-side Highway 30 (which is also the Seattle to Portland ride route) and found that I had no more flats than usual. Further, after I got used to riding on and over small debris, I found, to my surprise, it was really no big deal.
While I understand that my decision to ride on the shoulder is voluntary and if necessary I could legally and safely ride closer to the roadway, I now find that riding on the shoulder does not slow me down and provides some separation from the high-speed vehicle lanes on Highway 30. Of course, on roadways without wide, paved shoulders one has to allow sufficient room from the edge of the pavement for emergency maneuvers and to avoid broken pavement. Riding along the shoulder behind Bob (normally the case) has taught me that it is not so hard to move over to the right to provide some safety buffer between me and overtaking traffic.
ORS 814.430 "The Bicyclists' Bill of Rights"
814.430 Improper use of lanes; exceptions; penalty:
(1) A person commits the offense of improper use of lanes by a bicycle if the person is operating a bicycle on a roadway at less than the normal speed of traffic using the roadway at that time and place under the existing conditions and the person does not ride as close as practicable to the right curb or edge of the roadway.
(2) A person is not in violation of the offense under this section if the person is not operating a bicycle as close as practicable to the right curb or edge of the roadway under any of the following circumstances:
(a) When overtaking and passing another bicycle or vehicle that is proceeding in the same direction.
(b) When preparing to execute a left turn.
(c) When reasonably necessary to avoid hazardous conditions including, but not limited to, fixed or moving objects, parked or moving vehicles, bicycles, pedestrians, animals, surface hazards or other conditions that make continued operation along the right curb or edge unsafe or to avoid unsafe operation in a lane on the roadway that is too narrow for a bicycle and vehicle to travel safely side by side. Nothing in this paragraph excuses the operator of a bicycle from the requirements under ORS 811.425 or from the penalties for failure to comply with those requirements.
(d) When operating within a city as near as practicable to the left curb or edge of a roadway that is designated to allow traffic to move in only one direction along the roadway. A bicycle that is operated under this paragraph is subject to the same requirements and exceptions when operating along the left curb or edge as are applicable when a bicycle is operating along the right curb or edge of the roadway.
(e) When operating a bicycle alongside not more than one other bicycle as long as the bicycles are both being operated within a single lane and in a manner that does not impede the normal and reasonable movement of traffic.
(f) When operating on a bicycle lane or bicycle path.
(3) The offense described in this section, improper use of lanes by a bicycle, is a Class D traffic violation.