Don't Apologize for Other Bicyclists

Let's stop apologizing for other bicyclists. We've all had the experience. We're having a conversation with an acquaintance who knows we ride a bicycle or with somebody who we've just met who discovers that we ride. Suddenly we become the recipient of a long-winded story about that person's most recent negative encounter with a bicyclist. The story is breathlessly presented to us in a tone and with an attitude that suggests that we share culpability for the cyclist's actions.

Many of us then allow ourselves then to be drawn into a discussion of how cyclists need to shape up, how there should be more done to gain cyclists' compliance with traffic laws, and how education of cyclists about safe cycling is essential. (This latter "solution" is often accompanied by the observation that the roads will be much safer when all the elementary school students who are receiving bicycle safety education get behind the wheel of their motor vehicles.) Each of these would be helpful, but let's remind ourselves that there is no viable path to achieving full compliance with all traffic laws by all cyclists, just as there is no viable path to achieving full compliance by all motorists. And, even if there were, occasionally somebody would take umbrage at the behavior, legal or not, of somebody else.

While we live in a world in which most people are considerate and thoughtful, there will always be a few reckless idiots among us. Some of them will be on bicycles and some of them will be behind the wheels of motor vehicles. Couple that with the fact that each of us (regardless of mode choice) periodically makes dumb mistakes and the unfortunate reality is that not every other road user who we encounter is going to do exactly as we wish they would all the time. No amount of bicycle safety education is going to change that. No level of police presence is going to change that--though it would be nice if the police would at least make a head fake at enforcing the safe passing distance laws.

Why don't bicyclists obey traffic laws like everybody else? They do--just like everybody else and they undoubtedly will continue to do so. In a typical year, 40,000 Oregonians are convicted of driving while suspended or revoked and 25,000 for driving while impaired (generally drunk). Studies have shown that 70 percent of motorists periodically exceed the speed limit and 85 percent roll stop signs. We all know from experience (frequently from behind a steering wheel) that a violation of a traffic law rarely results in a citation. As is the case with violations committed by motorists, bicyclists are and will rarely be cited for their transgressions.

In 2011, Oregon had 331 road fatalities. Fifteen bicyclists died, five as a result of motorist error. (Given law enforcements predisposition to absolving the driver, the number of cases in which driver error caused the crash may be higher.) It has happened, but as a rule, bicyclists don't kill other road users. Bicyclists are not creating the unsafe conditions that we have on our roads.

Don't apologize. Instead, offer a deal with the individual to whom you are speaking by agreeing not to expect them to apologize for the actions of every other motorist if they will agree not to expect you to apologize for the actions of every other bicyclist. Remind them that each driver and cyclist is an individual, and it's the individual, not the mode that decides behavior. share your most recent horror story about an encounter with a motorist with the same breathless enthusiasm to which you've been subjected. Make sure that the individual to whom you are speaking understands that you view it as their fault and that they need to find that person and get them to mend their ways. There's one significant difference. It is highly unlikely that the bicyclist who they encountered jeopardized their life. The motorist who you encountered could have killed you. Thanks to Jim Coon for suggesting a better approach.

Polk County Crashes

A recent letter to the editors of the Polk County Itemizer-Observer reads as follows:

"This is in regard to the recent string of fatal accidents involving bike riders on our roadways. Considering the amount of curvy roads, tourists, trucks and just people in a big hurry and lack of shoulders, these roads are not safe for bike riders -- bright clothing or not."

"Most bike riders feel they have the right of way. Well, that doesn't stop a car or truck that can't see them on a blind corner from hitting them.

"Use your head when riding on these roads or don't ride in an area where there is no bike lane at all.

"I can't tell you how many times I've come around a blind corner in my log truck and almost had a head-on collision with a car to avoid hitting a bike rider. Which would you choose? Bike or a whole family in a car? Please think about that."

Following is the response that I have sent to the Itemizer-Observer editors:

A recent letter to the editor warning bicyclists to avoid riding on narrow, curvy roads should raise red flags among other road users. The letter writer indicates that he frequently rounds corners in his log truck and almost collides head on with other motor vehicles while swerving to miss bicycles.

Under Oregon law, bicycles are vehicles and have as much right to travel on our roads as any other vehicles. Drivers are legally required to leave a safe distance between their vehicle and any other vehicle that they are overtaking and passing, including a bicycle. Oregon further defines that safe passing distance for a motor vehicle traveling faster than 35 mph and overtaking a bicycle as “a distance that is sufficient to prevent contact with the person operating the bicycle if the person were to fall into the drivers lane of traffic.” If the immediate circumstances prevent an overtaking motorist from passing with a safe distance, then the motorist is legally obligated to slow down and follow the overtaken vehicle until it is save to pass.

Under the basic rule, regardless of the posted speed limit, the maximum speed at which a vehicle may be driven is limited to a speed that is reasonable and prudent given a variety of factors including other traffic, road surface and width, weather, and visibility. That essentially means that a motor vehicle is out of control if the driver cannot stop it within the distance the driver can see.

The driver who was responsible for one of the recent cyclist deaths has been cited for unsafe passing of a bicyclist and violation of the basic rule. The other two Polk County crashes in which cyclists died are still under investigation.

By his characterization of his own driving behavior, the letter writer admits that he regularly drives his log truck in a manner that is out of control and dangerous not only to bicyclists, but to every other person who must share the road with him. Hopefully, his admissions regarding his driving behavior will prompt a visit or monitoring by the sheriff’s office.

Thankfully, the vast majority of road users are cautious and conscientious when operating their vehicles. However, it is important for all of us to keep in mind the fact that we can never know what will be around the corner when we are using our public roads. It could be a stalled vehicle, farm equipment, livestock, somebody’s pet, a child, or a bicyclist. The few seconds we potentially save by driving too fast and failing to maintain control of our vehicles are not worth the tragic consequences that can, and unfortunately have, come as a result.

Oregon's Passing Laws

The laws in the Oregon Vehicle Code governing overtaking and passing other vehicles must be confusing because many people -- drivers and cyclists alike -- appear to lack a basic understanding of the law. A Marion County public official recently expressed the view that he did not want to see bicyclists on some local roads because, "You get pretty close to them with your vehicle." This county official apparently was unaware of the alternative of slowing his vehicle down and following the cyclists until he could safely pass.

His apparent confusion is shared by an astonishing number of people. It is not unusual to hear a comment from a driver expressing concern for cyclist safety after the driver had "squeezed their vehicle between a cyclist and oncoming traffic." Every cyclist can recount numerous situations in which a motor vehicle passed them at an uncomfortably close distance. Clearly, some of these situations involve out-of-control drivers who are trying to intimidate and harass cyclists. However, many of the situations involve well-meaning, generally conscientious drivers who apparently have a blind spot with respect to their responsibilities when operating a motor vehicle around bicyclists.

ORS 811.410 governs the responsibility of a driver who is overtaking and passing another vehicle. The law requires the overtaking driver to leave a safe distance between their vehicle and the vehicle they are overtaking. The statute also specifies that the overtaking driver must not return to the right side of the road until safely clear of the overtaken vehicle. Most experts agree that three feet is the minimum safe distance for motor vehicles passing bicyclists and several states have established three feet as the minimum distance for passing bicyclists.

While Oregon does not have a statutorily defined safe distance that covers all situations, ORS 811.065 does define "safe distance" as it applies if the motor vehicle is traveling faster than 35 mph on a road that does not have a bike lane. In these situations, the motorist is required to leave space between their vehicle and the bicyclist that is sufficient to avoid contact with the bicyclist if the bicyclist were to fall into the driver's lane of travel. That "fall over" distance is likely four to five feet. There are no qualifiers in the law indicating that motorists only need to operate their vehicles safely when convenient.

Perhaps all drivers should be required to take a test along the following lines:

1. You round a corner and see a farm tractor ahead traveling in your lane. What should you do?
     a. Maintain your speed and crash into the back of the tractor.
     b. Maintain your speed and swerve over into the oncoming lane of traffic.
     c. Lay on your horn so that the operator of the tractor will drive it into the ditch.
     d. Slow down and follow the tractor until you can safely pass.

2. You round a corner and see a car stopped with it's left turn signal flashing. What should you do?
     a. Maintain your speed and crash into the back of the car.
     b. Maintain your speed and try to pass the car on the left before the oncoming vehicle on which the turning car is waiting gets there.
     c. Maintain your speed and pass the turning car on the right by driving into the ditch.
     d. Slow down or stop as necessary to allow the left turning car to clear your lane of travel.

3.  You round a corner and see a pedestrian crossing the road in an unmarked crosswalk. What should you do?
     a. Maintain your speed and crash into the pedestrian.
     b. Maintain your speed and swerve in front of the pedestrian.
     c. Maintain your speed and hope there is room for you to pass behind the pedestrian.
     d. Slow down and yield to the pedestrian.

4.  You round a corner and see a bicyclist traveling in the same travel lane and direction as you are driving. What should you do?
     a. Maintain your speed and crash into the bicyclist.
     b. Maintain your speed and pass the bicyclist without crossing the center line.
     c. Lay on your horn so the bicyclist will ride off the road and out of your way.
     d. Slow down and follow the bicyclist until you can safely pass.

Obviously, the answer to each of these questions is "d". 

The burden for using public roads and streets safely and courteously does not rest solely with the overtaking driver. As the operators of slow moving vehicles, bicyclists also have statutory responsibilities to share the road by taking reasonable actions to avoid unduly inhibiting other traffic. I will address these responsibilities in a subsequent post.

Marion County Sheriff's Office Meeting

On Monday, September 12, Jen Akeroyd and I meet with a sergeant in the Marion County Sheriff's office to discuss and better understand the policies and procedures of the sheriff's office. Following are our notes from the meeting:

(Note: The rust colored information was not specifically discussed in the meeting.)

Marion County criteria for responding to reports of crashes:

Criteria? One or more of the following*:

1. Serious protracted injury
2. Crime
3. Parties not exchanging information
4. Physical obstruction

*Note that this is Marion County-specific and the criteria for other jurisdictions (i.e. Salem, other counties) might differ. These criteria can change because they are at the discretion of a department; they are not laws or standards.

Advice for cyclists involved in crashes with motor vehicles?

It is okay to call 911 in any bicycle-car collision and have dispatch help you determine the need for police on-site.  If police attendance is determined unnecessary then a case number can be given over the phone. A case number might be needed for insurance.

A case number is not needed to issue a citizen citation. During the exchange of information with the motorist, cyclists should make sure that they get the following information about the driver, most of which is on the driver’s license:

• Drivers Name (First, MI, Last)
• Address
• License Number
• Sex, race, date of birth, height, weight, hair color, eye color

and the following information about the driver's vehicle:

• License Number
• Year, Make, Model, Style, Color (e.g., 1999 Toytota Tacoma Pickup, Purple)

Issuance of citations in crashes:

What are the criteria that Marion County uses?

• This is entirely at the discretion of the on-scene deputy, and will differ from deputy to deputy (or sergeant). We learned that some deputies have special training in particular areas that make them more sensitive or knowledgeable about specific scenarios (i.e. traffic violations, etc).

 In the absence of a citation, what response should cyclists expect if they issue a citation themselves under ORS 153.058?

• This process is initiated at the DA's office.
• If the driver contests the citation, then the cyclist will have to present evidence in court to support the citation. Unlike a criminal trial in which the standard for establishing guilt is “beyond a reasonable doubt”, the standard in a traffic case is a preponderance of the evidence presented  (51%) supports a conclusion of guilt or, based on the evidence it is more likely than not that the driver is guilty of the violation.

Enforcement of traffic laws for cyclist safety:

 Have citations been issued under ORS 811.135(3) Careless driving with injury to a vulnerable user or ORS 811.065 Unsafe passing of a bicyclist?

• The sergeant could not recall a case.

What can be done to improve enforcement of these and other laws protecting cyclists?

• We briefly discussed creating a video in-service for police and supplying police staff with BTA (or similar) literature.
• Doug suggested an Awareness Enhancement Operation (perhaps on Hazelgreen). The sergeant did not seem opposed but did suggest that it would not bring the $ needed to conduct. We disagree. If we were to push this suggestion, it sounds like we would want to contact the head of the traffic team.

 

Interpretation of passing laws:

Can a motorist cross a double line to pass a cyclist?

• ORS 811.420 relating to passing in a no passing zone allows an exception if an obstruction or condition exists making it necessary cross the centerline provided that the driver yields to oncoming traffic. Some people consider bicycles to essentially constitute an obstruction and argue that drivers may therefore cross a double line to pass. The sergeant indicated that crossing a double line is technically a violation but doubted that a citation would be issued if the driver did so with care and had sufficient vision to be able to yield to any potential oncoming traffic.

What constitutes "impeding the normal and reasonable movement of traffic" under ORS 814.430(2)(e)?

• The sergeant could not offer specific criteria; rather it seems that this, again, would be at the discretion of the officer. Police officer discretion might conflict with the driver's opinion and the cyclist's opinion. However, she did indicate that the need for a driver to slow down and follow a cyclist for a short period of time would not constitute impeding traffic.

What is the obligation of an overtaken cyclist under ORS 811.425?

• As with all other vehicle operators, a cyclist should yield to overtaking motor vehicles by moving out of the main travel lane if there is a safe way to do so and if there is no safe lane for the overtaking vehicle to use in passing. Riding at speed into gravel is not safe, for example, and is not expected of the cyclist. Similarly, a cyclist is not obliged to dismount and carry their bike off the road.

• However, PLEASE remember that a few drivers have different opinions and a driver who has just threatened you by driving too close may have other mental or legal issues. Do not engage in an argument about who is or who isn't right if an encounter ensues. Instead, make mental notes of as much identifying information about the driver, the vehicle, and the situation that you can and commit the information to written notes as soon as possible—particularly if the driver committed a traffic violation such as unsafe passing during the encounter. Law enforcement may be willing to issue a citation in egregious cases and, in the absence of action by a deputy or other officer, cyclists may be able to issue a citizens citation. (Recently, there was an encounter between some cyclists and a driver in a similar scenario. The driver threatened the cyclists with a knife. We can never be sure that a driver won’t brandish a weapon during a confrontation.)

What can we do to make the roads safer for cycling and how can the Marion County Sheriff's office help?

Training for police - what is the curriculum?

• Currently, Marion County police receive no in-service training about cycling laws/vulnerable users. We were told that this is because of a lack of time (only 3 in-service training days per year) and priority (e.g. domestic violence and police safety more important).
• However, the sergeant is open to ideas that would be low-cost and time-efficient.

 Training for cyclists and drivers? 

• The sergeant has offered to help us educate and encourage safe cycling through:

o   Positive reinforcement campaigns (e.g. officers give rewards to helmet-wearing youth, etc). We would need to do the footwork to solicit rewards, for example, that officers would distribute ad hoc, while on duty.

o   Public information video: We should contact the public information officer and school resource officer (who is a cycling advocate) to explore ways to create and distribute videos and other information about safe driving around cyclists and safe cycling on the road system.

Other ideas?

• Incorporation of Vulnerable Road User law and other information about the rights and responsibilities of drivers and cyclists into diversion class (Jen will contact NTSI)
• More emphasis on getting drivers who are cited into diversion classes.
• Diversion class for cyclists ticketed for traffic violations? This would take some time to get off the ground but could be a great way to get cyclists to attend Gary Obery's safe cycling class.

o   How many citations are given to cyclists in Marion-Polk counties and the cities of Salem and Keizer each year?

Red Pickup Guy

For more than 5 years, bicyclists have been reporting unpleasant and potentially dangerous encounters with a motorist driving a red pickup on Brush College Road in northwest Salem. These encounters generally involved the motorist closely following the cyclists up the hill while laying on the horn and, eventually, passing them at distance that was uncomfortably close. The motorist finally was identified as Ray Clinebell, an elderly resident on Eagle Crest Road.

After one of these confrontations and multiple complaints by local bicyclists, a Polk County deputy sheriff talked to Clinebell. Reportedly, Clinebell told the deputy that he believed that bicycles can’t ride on the road and that we can only ride in bike lanes. While the deputy refuted this and told him that bicycles can ride on any road, the information did not appear to have affected Clinebell's perspective.

As a result of Clinebell's continued actions, he was charged with harassment, recklessly endangering, disorderly conduct, following too close, and violation of use limits of sound equipment. In July 2007, Clinebell was convicted of the two traffic violations, but acquitted of the criminal charges. The judge in the case appeared willing to convict for harassment, but was unable to do so because of technicalities in the law.

Unfortunately, the reports of encounters with the "Red Pickup Guy" continued. Clinebell ended up back in court facing criminal charges resulting from a couple of those encounters, but again was acquitted. It can be difficult to understand why Clinebell escaped conviction for any of the criminal charges, but the law basically requires that, for a criminal conviction, an individual must have either intentionally committed the act or have disregarded a risk to another of such a nature that the disregard constituted a gross deviation from the standard of care of a reasonably person. Clinebell asserted that he was not intentionally endangering cyclists, but only warning them off a dangerous road and, as cyclists all know, driving too close to them is far too common to reflect a gross deviation from societal norms.

On March 18, 2011, Clinebell again found himself in court charged with criminal conduct--this time after an encounter with a Polk County deputy sheriff on Brush College Road. According to the deputy's testimony, the deputy had flagged two motor vehicles to a stop during the course of aiding the recapture of a horse that had escaped the pasture. When it appeared that it was safe to allow the vehicles to proceed, the deputy waved the first vehicle forward. The driver of that vehicle pulled around the deputy and drove off. The deputy then motioned for the second vehicle, which it turns out was driven by Clinebell, to proceed and turned to look back up the road to check on the progress in leading the horse back the the pasture. The deputy testified that he next heard Clinebell revving the engine on this pickup and turned back to see the pick headed at him. Luckily, the deputy was able to jump out of the way and was only struck on the arm by right-hand mirror on Clinebell's pickup.

After the deputy detained Clinebell, the deputy testified that Clinebell had difficulty locating his drivers license, flipping past it twice while looking through his wallet and ultimately handing the deputy his concealed weapons permit. According to the deputy, Clinebell exhibited other non-responsive behavior, including initially refusing to exit his pickup when told to do so by the deputy. During that encounter, the deputy also determined that Clinebell was driving suspended.

Expert medical testimony for the defense indicated that Clinebell has a range of medical problems that affect his ability to drive. Specifically, he is unable to judge distances, think clearly, or complete tasks. While the deputy did send a referral to DMV asking for an evaluation of whether Clinebell could drive safely, there was no testimony indicating that either Clinebell's family or physicians had done so and, by the time of the trial, Clinebell had regained his drivers license.

Clinebell denied revving his engine and indicated that he had not known that he had hit the deputy. He indicated that he was on the way to dialysis and that he had been feeling tired and impatient as a result of his medical condition. He also indicated that he had not known that his license was suspended and discovered the notice of suspension among unopened mail when he went back home.

Just before the trial, Clinebell had waived his right to a jury. As a result, as was the case in the previous trials, the judge ruled on Clinebell's guilt. He found Clinebell guilty of reckless driving, recklessly endangering, and driving suspended. He acquitted Clinebell of the charges of harassment and interfering with a police officer.

Reckless driving and recklessly endangering are class A misdemeanors punishable by up to a year in jail and a fine of up to $6,250. Clearly, jail time was not on the table for Clinebell. (Polk County would have had to pay his medical costs.) In the end, the judge imposed fines totaling about $1,000, far less than he could have but significant nonetheless in combination with Clinebell's legal and medical consultation costs. The judge also suspended Clinebell's drivers license for 90 days (until the middle of June).

At one level, the penalties seem like a slap on the wrist given the extent to which Clinebell's reported driving behavior has endangered bicyclists and other road users. However, he does now have a record of criminal convictions for his behavior and another license suspension. During the trial, Clinebell's defense was essentially that he was medically incapable of safely operating a motor vehicle. The defense relied heavily on the deputy's assertion in the DMV evaluation request that Clinebell did not appear able to safely operate a vehicle as a demonstration that Clinebell did not intentionally hit the deputy with his mirror. Hopefully, DMV will take notice and will permanently revoke his license. Finally, now that one of their own has been a victim of Clinebell's driving behavior, perhaps law enforcement will take more seriously the threat that his actions pose others.

One of the unfortunate facts associated with Oregon's enforcement of traffic laws is that many suspended drivers continue to drive with few consequences to themselves. For example, there are an average of 40,000 convictions for driving suspended or revoked in Oregon each year, an average of about 110 each day. During the 5-year period, 2002 - 2007, 495 people accumulated 10 or more DWS/DWR convictions each. In testimony to a legislative committee a few years ago, a Multnomah County district judge described the typical pattern for many of these people as being cited for a traffic violation, not paying the fine, receiving a license suspension order, being cited for driving suspended, not showing up in court or paying the fine, receiving another suspension order, and on and on.

The extent to which Clinebell will abide by the suspension order is known only by him. (In issuing his sentence, the judge noted that the previous suspension order that Clinebell ostensibly discovered in unopened mail only  after the incident had been issued months before.) A license suspension (and, hopefully, a future revocation) notwithstanding, cyclists still need to be attentive and alert when riding on Brush College Road and definitely should report any sightings of Clinebell behind the wheel to law enforcement.