By Ray Thomas, Portland Bike Lawyer
The 2007 Oregon Legislature passed HB 3314, creating an enhanced penalty for careless driving if it contributes to serious physical injury or death to a “vulnerable user of a public way”, and will go into effect January 1, 2008. The purpose of this article is to discuss the Vulnerable User legal concept and its potential for improvement in safety for non-motorized roadway users such as bicyclists and pedestrians. In the Winter 2007 edition of Oregon Cycling, I wrote about the need for enhanced protection for vulnerable roadway users. See “Injuries And Law Reform”.
“Vulnerable Roadway User”: A European Safety Concept
The concept of “vulnerable roadway user” has been used by planners and safety organizations in Europe to categorize and describe non-motorized roadway users. The label is a nice one because it incorporates the inherent vulnerability of humans who use the roads without being encased in a protective steel shell. Inclusion of the concept of vulnerability evokes a more sympathetic image and focuses on the shared vulnerability of these different user groups. By including vulnerable users within a single term, the requirement for protection is brought to mind to counterbalance the somewhat natural reaction some people have to improving safety by restricting access, such as by restricting bicycle access to freeways or pedestrian crossings or road access.
No state has ever used the Vulnerable Roadway User concept as a legal term, but for the reasons above stated, the members of the Bicycle Transportation Alliance (BTA) Legislative Committee felt it could focus the need for enhanced protection of vulnerable user groups ( who are reducing energy consumption and pollution, while improving their own good health and fitness). Since people need to get out of their cars and walk or roll under their own power, some enhanced protection is necessary to get law enforcement and the court system participating in protecting and encouraging kids to walk to school, commuters to ride a bike, and the use of a skateboard or scooter instead of getting a ride or driving a car to run an errand.
It was our view that Oregon law was far too lenient in punishing careless drivers who receive merely a fine and are not even required to make a court appearance after a horrific collision. Some police officers and medical personnel have even been heard to argue that people who choose not to ride in a car should expect to have bad things happen because the roadways are so dangerous. To us, tolerating the status quo was not acceptable – it was time to change the law and create a zone of protection instead of indifference toward those people brave enough to use their bodies to get around.
Political Realities and Difficulties.
When we first introduced the idea of an enhanced penalty for careless drivers who hurt vulnerable users, key legislators told us that any effort to create new crimes and inmates for our already overburdened state court and corrections system would face widespread resistance. Further, our effort to include motorcyclists within the definition of Vulnerable Roadway User was criticized and motorcyclists were then excluded, even though the American Motorcyclist Association (AMA) “Motorcylists Matter” campaign was a pioneer in the enhanced penalty area. On the other hand, we were pleased to include highway workers and rural folks moving equipment or astride animals within the definition. See Attached law inset (HB 3314).
It was extremely difficult to create an enhanced penalty when further criminal consequences were not an option, but BTA legislative committee member Doug Parrow tweaked our original language to include a non-criminal alternative of a $12,500 fine (up from $750.00) and a one-year license suspension (no license suspension was previously included in a conviction for Careless Driving). Additionally, to create an inducement for careless drivers to improve their driving skill and pay the community back for their actions, a traffic safety course requirement and 100-200 hours of community service were included as an alternative to the fine and suspension – if the program is successfully completed, then the suspension and fine would be suspended.
While some in the bicycle community saw the penalties as insufficient, we felt it was a great improvement on the status quo. We also added a requirement requested by victim families that careless drivers be required to make a court appearance in front of a judge to face the charges instead of merely sending a check in the mail. Preliminary reviews of our non-criminal alternative by law enforcement personnel were somewhat favorable because it provided an additional charging option. Police officers and prosecutors told us they were sometimes frustrated in serious accident cases because Oregon did not have a vehicular homicide law and its criminally negligent homicide law requires a gross deviation from the standard of care, which is close to a recklessness requirement. The Vulnerable User law provided a way to create real consequences for careless or negligent drivers without sending them to jail.
We quickly learned after legislative hearings on our bill that the testimony of families and victims was critical in creating legislative support. We also discovered that creating a new legal concept within the existing statutory structure required amending a considerable number of other statutes (see the attached statutory inset for the amendments to other statutes). The responsibility for administering the program monitoring careless drivers and supervising community service and any fines or license suspensions also had to be assigned to various agencies. Agency legislative staffers were wary that their departments would be required to take on additional work without receiving any additional staff to perform it. However, our forward-looking attempt to solve the careless driver problem for kids trying to get to school and folks trying to work on the state’s highways contributed substantially to rounding up agency representatives willing to help us figure out how to operate the program without costing the state a lot of money. Because we were doing something that had never been, the committee staff and the Legislative Counsel’s office were required to draft and study multiple amendments, so that by the time the Bill wound its way through the legislature it had been amended at least eleven different times, a record in our experience.
When HB 3314 goes into effect January 1, 2008, we will see how effective it is in creating real consequences for bad-driver collisions. We hope that law enforcement will respond to our law by increasing their protective attitude toward kids trying to walk to school and folks trying to ride a bike instead of driving. Before the vulnerable Roadway User law was passed, Oregon law provided only minor consequences for careless driving that really hurt someone. After our law passed the Legislature, a well-known local bicyclist was killed by a driver with a suspended license, and some folks in the bicycle community felt that we had not gone far enough in protecting the state’s riders.
We felt, however, that given the constraints of the political process, we had made a good first step by incorporating a European safety concept into the American legal system, with an enhanced penalty mandating either community service and driver-improvement education, or a substantial fine and a mandatory one-year license suspension. While the Vulnerable User law will likely be challenged in court, we hope it is a good first step toward creating greater consequences for drivers who fail to give Vulnerable Roadway Users their right to use the road.
In the next legislative session we hope to introduce a Vehicular Homicide crime that would include situations where a motorist continues to drive even with a suspended license, as the Vulnerable User penalty will do little to punish someone who has no driver’s license and no money to pay the fine. One underlying problem for American safety activists is that over the last 40 years citizens have been encouraged by media and the government to believe that driving a car is a right instead of a privilege. The percentage of serious injury or death collisions caused by suspended and unlicensed drivers is unacceptable and should provide a basis for passage of additional criminal consequences in order to get these drivers off of the streets.