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:

1. 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.
   
   
2. 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.

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