Stay to the Right, September 1998 Update

Megan Glor wrote this article. Megan is a trial lawyer in our office who represents injured bicyclists. She is a bicyclist who completed an unsupported cross-country ride in 1989. She is the chairperson of the board of The Community Cycling Center. Megan recently represented a bicyclist on a traffic charge and we were all upset about the result. I asked her to put her frustration to good use and write an article about the experience for the state's riders to warn them about the kooky way the law is sometimes applied toward those of us on two wheels.

If you are a bike commuter, particularly in an urban area, you probably find yourself in the following predicament almost every day: You are riding on a moderately busy street where motorized traffic typically travels at 35-40 mph. Since you are not riding at motorized vehicle speed, you ride as far to the right as you can, between the vehicle lane and the curb, possibly next to cars parallel-parked at the curb. Motorized traffic backs up at a traffic signal one or two blocks ahead of you. You can see that your path is clear, so you continue riding, travelling between the stopped or stopping motor traffic and the curb. Sounds familiar, until...

After making your way to the traffic light, which is green, you proceed through and are stopped by a cop. You are cited for illegal passing on the right. What?! Your path was clear; you weren't obstructing traffic; you didn't cut anyone off; you proceeded through the light on the green. Wait a second! You weren't required to stop in the middle of the block when it appeared perfectly safe for you to ride, were you? Don't many of us ride our bikes so that we don't have to sit in long lines of traffic? Unfortunately, the law leaves riders in something of a twilight zone.

We recently represented a bicyclist who was cited for careless driving when he did exactly this, but could not see that a motorist travelling in the adjacent traffic lane had created an opening for an oncoming vehicle to make a left turn. The oncoming, left-turning car and our client collided in our client's path of travel as the car made its left turn. No one disputed that our client was travelling at a reasonable speed. However, the judge decided that the bicyclist was careless because he continued to ride when the traffic in the lane next to him had stopped or was stopping. He continued to ride "at his own peril."

Unfortunately, the judge's decision is at least partially supported by Oregon law. Oregon Revised Statute (ORS) 811.430 states that when a bicyclist is riding on a roadway at less than the normal speed of the traffic using the roadway, the bicyclist must ride as far as practicable to the right curb or edge of the roadway. ORS 811.415 provides that a vehicle - and bicycle is included in the definition of vehicle - may not overtake and pass on the right of another vehicle unless:

Now entering the twilight zone. Literally applied, if vehicular traffic is backed up for three-quarters of a block, the law says that a bicyclist cannot pass the stopped cars on his or her left, even though the path is clear, since the vehicles to be overtaken are not turning left. This is the only way the bicycle rider can avoid running afoul of ORS 811.415.

Ticketing bicyclists for passing in this situation creates more danger than it prevents. Requiring bikes to stop mid-block to avoid passing stopped cars will result in bikes being stopped at odd places along the side of the roadway, where drivers do not expect them and where they are less likely to be seen. Perhaps most importantly to bicycle riders, we expect that when we ride we won't be stopped in traffic breathing the emissions of gas guzzlers. Indeed, escaping this unpleasantness is one of our incentives for riding in the first place.

The judge in our case sent the wrong message. When a driver elects to make a left turn and crosses into the path of oncoming traffic, the driver should do so at his or her own risk. ORS 811.350 provides that a driver commits the offense of making a dangerous left turn if he or she "does not yield the right of way to a vehicle approaching from the opposite direction that is within the intersection or so close as to constitute an immediate hazard." The burden or responsibility of looking for oncoming traffic, whether vehicular, bicycle or pedestrian, should be on the driver making the left turn, not on the vehicle traveling safely in its legal path of travel.

Would the judge in our case have had the same response had the scenario involved two cars? In that case, I suspect the judge would have told the left-turning driver that it was he or she who was responsible for ensuring that there was no oncoming traffic before making a left turn across the oncoming traffic that had the right of way. That's what the law requires. But the judge in our case placed the burden on the bicyclist. The bicyclist cannot and should not be expected to anticipate that a car is going to suddenly turn left in front of his or her bicycle. But bicyclists are sometimes required to shoulder seemingly unjust legal responsibility, including liability for a "twilight zone" collision.