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Posted by on Mar 8, 2010 in Uncategorized | 42 comments

Let Him Ride

A defense fund and website has been set up for ChipSeal. Please visit Let-Him-Ride.com and pass it on!

Some background

In my post The Enforcement of Imaginary Laws, I shared the story of my friend ChipSeal’s arrest for riding in the road. ChipSeal has had one trial, for the citations and arrest in the City of Ennis, TX. They wanted to charge him with driving in the road where a shoulder is present, but TX statute does NOT require a cyclist to drive in the shoulder. When they finally decided what to charge him with, they chose “impeding traffic.” Unlike Florida, Texas code does not specifically exclude non-motorized vehicles from that statute. However, there is plenty of legal precedent in other states that human-powered vehicles are still, by definition, excluded. Nonetheless, the jury was given bogus and improper instructions which easily confirmed their own beliefs in the taboo against bicycle driving.

The bogus instructions:

An operator of a bicycle commits the offense of FAILURE TO OBEY MINIMUM SPEED REGULATIONS (IMPEDING TRAFFIC) if the operator of a bicycle drives so slowly on a public road as to impede the normal and reasonable movement of traffic.

He was found guilty on all three counts, despite that there were multiple lanes in his direction of travel and motorists needed only to change lanes to pass. Please note, in the link to Steve’s post, the officers’ supervisor AND the chief of police attended the trial. This goes well beyond misguided or rogue officers. It is a departmental problem. No wonder the judge maneuvered ChipSeal into a jury trial, it might have been a political nightmare for him to uphold the law in the face of that.

At this point, an appeal victory is essential to protect the legal rights of cyclists in Ennis, TX (and, perhaps, beyond). In addition to the Ennis appeal, ChipSeal faces a trial in county court for his arrest (for operating a bicycle on the road) by an Ellis County deputy.

Prejudice substituted for law

Aside from the egregious misrepresentation of the statute, since when is changing lanes to pass slower vehicles not a normal and reasonable movement of traffic? Where exactly do you set the bar for that? Just before the first traffic stop (last October), the officer was impeded by a car in the left lane, stopped and waiting for a gap to turn left. The officer couldn’t change lanes immediately to pass the stopped, left-turning car because ChipSeal was driving past in the right lane. So, he pulled ChipSeal over and cited him for impeding traffic.

Personal implications

First and foremost, RANTWICK says it best:

I just ride the way I think best knowing that I have a legal right to do so and leave it at that. When I heard that my online friend ChipSeal was being denied that same right in Texas despite the fact that he is entitled to it under the law, it made me angry. For me, this isn’t about cycling advocacy. It is about a friend getting screwed over. My friend wants to fight for his legal rights by appealing recent court decisions. When I put myself in his place I would want to fight too, but I wouldn’t have the money to mount a good defense and neither does he.

ChipSeal broke no laws. He merely insisted on driving his bicycle (his only mode of transportation) in the manner he felt safest AND is granted to him by statute.

Here are the issues in order of importance to me. My friend’s rights have been trampled. A fellow cyclist’s rights have been trampled. An unemployed American with no car is being denied the right to travel by human power in a safe and legal manner. Vulgar, Culture of Speed bias has trumped both law and fairness.

United we stand

No matter how I might choose to ride as an individual, on a given road, in given conditions, I fully support another cyclist’s choice — whether that be in the shoulder, the right tire track or the left side of the right lane. What’s been somewhat disheartening (though, sadly, not surprising) in this saga, is the way the state and national advocacy organizations have so far refused to support ChipSeal. But cyclists across the US and Canada are coming together to support him.

News from across the pond

Last week Anthony Robson at CityCycling Magazine sent ChipSeal and me two articles about a cyclist who was wrongly cited, wrongly convicted and then won his appeal in the UK. Here is an excerpt from The Law According to Telford:

On mention of his story there was a degree of incredulity in its reception by the cycling community. Many espoused legal viewpoints with reference to the Highway Code, with legitimate concentration on the illogical application of the law to the cyclist. It seemed to most that it was only a matter of time before the case would be dropped.

But the case survived.

Backing for Daniel, and the strength of his argument, seemed, however, to be getting stronger as the matter rolled on. The Cyclists’ Defence Fund took up the baton and the might of John Franklin was enrolled as an expert witness.

You can read the follow-up article after the appeal here.

Anthony has featured ChipSeal’s plight in the current issue of CityCycling. Read Stateside Shenanigans… and the whole issue, it’s a classy publication!

What can you do?

Times are tough. Most of us don’t have a lot of spare cash. But if you have a buck or two, every drop in the bucket will help. ChipSeal has another court case in Ellis County and an appeal in Ennis. His right to travel depends on winning those cases. He has an attorney, but we (his friends and, hopefully, the cycling community at large) are covering the fees.

If you’d like to have a souvenir for your donation, you can visit the CycleDallas gift shop.

If you simply can’t spare any money, it’s OK. You can help by passing this site on to friends and helping raise awareness of this case.

Thank you!


A side note for Orlando. I am aware of some issues with OPD officers giving questionable citations, and an incident of seriously unbecoming conduct during the February CM. Those problems are being addressed and steps are being taken to increase understanding within the department. I’ll have more on that, soon. If you are stopped for what you feel is legal behavior, be polite, don’t argue, get a name and badge number. Try to avoid getting a citation!

42 Comments

  1. For comparison, do we have the actual wording of the TX impeding statute? Is it online somewhere?

    • John, you can find it in this post.

      TTC Section 545.363; MINIMUM SPEED REGULATIONS. (a) An operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.

      Sec. 551.101.  RIGHTS AND DUTIES.  (a)  A person operating a bicycle has the rights and duties applicable to a driver operating a vehicle under this subtitle, unless:
      (1) a provision of this chapter alters a right or duty; or a right or duty applicable to a driver operating a vehicle cannot by its nature apply to a person operating a bicycle.

      Ambiguity is almost always turned against bicyclists in the field. We are fortunate in Florida that a wise person added “motor vehicle” to the impeding statute. But as I said above, there is precedent for the impeding law NOT applying to bicycle drivers in other states with the same wording as TX statute.

      • Let’s not forget that those precedents about the impeding law not applying to bicyclists are based on the general notion that no one who is going as fast as he or she reasonably can, who has a right to be traveling there, can be in violation of the impeding law for not going faster.

        Even taking the law literally, the “except when reduced speed is necessary for safe operation” applies. After all, if going faster will physically exhaust the person, “the reduced speed is necessary for safe operation”.

  2. Seems to me that such a blatant misstatement of the impeding law should be grounds for a mistrial. Is that is the basis of the appeal?

    • My understanding is that the original case was not in a “court of record” (no transcript), and so the “appeal” is not really an “appeal”, but just a retrial, and does not require a basis (like showing error by the earlier court) to go forward. That said, I would think the error in the jury instructions from the first trial can be used as evidence in the retrial.

  3. Thanks for this re-cap. I’ll be alerting my readers on Carbon Trace, and donating, shortly.

    • I think the basis for the appeal is that the jury was given the incorrect instruction. It’s a common basis for appeal.

  4. This just makes my blood boil every time I hear about it. It looks as if support is coming in from all sides now – even across The Pond. This could be a watershed event for vehicular cycling. I’m sure ChipSeal would have preferred to go on with his daily life living in relative obscurity, however.

    He has my support.

  5. Serge is correct. “Chip” (Reed in real life) had a trial which was not a court of record. Complete with a jury. Upon his appeal, it now goes to a “do over” in a court of record. The court of record will not have a jury and will have a lawyer. There are no items to appeal if the court of record is won. I guess appeals could take place if the case is lost. Could get spendy, so the best outcome is for a win in the first trial court of record.

    • The best outcome for Chip is to win this “redo” case. But in terms of achieving precedent-setting decision to benefit all Texas bicyclists, he has to lose and then win on appeal.

      That said, I’m glad he has a lawyer this time to make sure all the relevant evidence is presented and arguments made so that a basis for appeal is established in case he loses again.

  6. I want to contribute but I have not been able to find out how to contribute without using a credit card. Does anyone know how to contribute by check?

    • Eli, I think you can set up paypal with a bank account and no credit card.

      Otherwise, maybe one of the folks on the Texas end can offer a snail mail address to send a check to…

    • Eli, PM has offered as much on the Cycle*Dallas blog. I would not hesitate to trust PM to get the cash to the right place.

    • This just goes beyond asinine at this point. Can’t these police lose their jobs for arresting people for imaginary laws? And if they are indeed consulting the city attorney before they do this stuff, is (s)he even aware of state law?

      • Since a jury found Reed to be in violation on all 3 counts of impeding traffic, the police can easily claim legitimate legal basis.

        • can you impede traffic if there isn’t any?

          • I don’t think so, but without a court record of the trial we can’t know if the presence or absence of other traffic was established. I heard there were 911 calls from people complaining about having to swerve to avoid hitting him; I suspect that would be enough to establish the presence of other traffic for most juries.

            I agree with you in the other comment about this being a civil rights violation, but somehow I think it will be difficult to get the ACLU involved.

      • I have to wonder if they’ve crossed the line into a civil rights violation (if they hadn’t already). When all is said and done and justice prevails, he may have grounds for a civil suit against the city.

        This really smacks of suppressing an uppity minority who refuses to know his place.

  7. I love that whole 911 aspect. How many times have cyclists called in a careless or hostile motorist only to be shrugged off. “There’s nothing we can do about it if we don’t see it.” But OMG, a cyclist making motorists change lanes on a multi-lane road! They don’t even have to see any motorists to act on it. Nevermind that if motorists are swerving around, it is THEY who are being reckless.

    • Well, obviously there is an anti-bike bias at play here, but it’s also usually true that when a cyclist calls 911, it’s the one and only call about an incident for which there is no other evidence besides the cyclist’s eyewitness account.

      In this case you apparently had multiple motorists calling in about the behavior of a cyclist that the police could see themselves and also believed was unlawful and dangerous.

      As you know, the implied premise is that slow traffic constitutes a hazard, and on high speed roads an unacceptable one. That’s what we’re up against.

    • I’m not sure that’s even an acceptable use of the 911 system. I guess in a small town the 911 operators might be fine with it, but around here I imagine they’d give you the old “sir/madam… 911 is for emergency use only”.

      • Hence the likely exaggeration… “people are swerving to avoid him…!” Because “there’s a damned cyclist in the road affronting my dominion and I want someone to get rid of him” would just sound foolish.

  8. If the officer has not witnessed me impeding traffic, as I believe the most current arrest, and the Ellis County arrest both displayed, then I was arrested on the strength of anonymous 911 callers. Will the prosecuting attorneys bring to the stand those who accuse me? Do I not have a right to confront them?

    I see this as a possible fatal weakness in the prosecution of my last two arrests.

    • The problem with that defense, sir, is that it rests on the premise that you were not indeed impeding traffic. Since you admit to traveling around 15 mph in a lane where others are normally traveling 35 mph or more, that alone proves to most people that you were impeding traffic, period. I sincerely believe any effort spent trying to change people’s minds about that definition of “impeding traffic” is a complete waste of time and energy and can only serve to undermine your credibility in the minds of anyone you’re trying to persuade. That is, no matter how sincere you really are, most people believe so firmly that relatively slow travel in a lane (like 15 mph vs. 35 mph) so obviously impedes the “normal movement of traffic” in that lane, by definition, that challenging that belief is going to be seen as a desperate and disingenuous attempt to get out of a ticket. For them, it’s not the 911 calls that establishes the impeding (so challenging them is moot); it’s that you admit to traveling at 15 mph (or whatever it was) when others are known to be traveling much faster in that same lane that establishes the impeding. Unless you and your lawyer understand, appreciate and accept this reality, I’m concerned you will not be able to win.

      I know you have many supporters who believe you were not impeding and should continue to argue that. Yet none of them (so far) can answer my question. If going 15 mph in a lane is not constitute impeding the normal movement of 35+ mph traffic in that lane, what does constitute impeding? In other words, the argument that your behavior in this case was not impeding others implies, in essence, that anyone lawfully traveling on the highway, no matter how slowly relative to others, cannot be impeding. That’s an impossible position to argue, and it’s clear that that is not the intent and purpose of the law.

      The other defense – which I’ve been urging you to use all along – is the Trotwood defense. Instead of pointlessly denying that you were impeding others, point out that since you couldn’t go any faster you could not be in violation of the minimum speed statute (whose purpose is to require slow impeding traffic to move faster when safe and reasonable, not get off the road).

      The distinction is crucial. You have to pick one defense or the other. Being ambiguous about it is a little bit like the murder defendant who argues, “I didn’t kill him because I was home alone watching TV miles away, but if I did, it was self-defense”.

      You have to pick a defense, and I can virtually guarantee that if you stick with “I wasn’t impeding anyone” you will continue to lose.

    • http://www.ohiobike.org/selz/Selz_Rt2Road.htm

      ChipSeal, I am on your side, I sent you some money and wish you the best of luck so please don’t be too offended: I am no lawyer and this is not legal advice but it is clear to me from reading your posts that you need to hand over the reigns to a lawyer and hopefully a good one.

      It sounds like Selz was in a very similar situation to you, had a sharp lawyer and only just won his appeal.

  9. I suggest that in order to impede someone from traveling on a roadway, one must be actively involved in preventing that other user from proceeding.

    Proceeding at what speed? There are no legal minimum speeds on any surface roads in my area/state, to the best of my knowledge.

    I would also suggest that impeding should involve preventing another road user from making a safe pass. Operating a bicycle on the roadway does not automatically prevent other road users from overtaking, when conditions allow for safe passing.

    When I ride, I am naturally slower than most other traffic, and I do not prevent other road users from passing in safe conditions. I am not impeding traffic.

    • “in order to impede someone from traveling on a roadway, one must be actively involved in preventing that other user from proceeding.”

      Fred, there is no hint in the law or the dictionary that one must be preventing others from proceeding to be impeding. There is also no hint in the law or dictionary that suggests that if safe passing of a slow-mover is possible the slow-mover is not impeding. This morning I saw traffic slowed and backed up over a mile due to one of two same-direction lanes being closed for a very short section. I’m not saying Chipseal had that effect; my point is that even though safe passing of the construction was possible and others were not prevented from proceeding, the construction closing of the lane was clearly impeding traffic. If Chipseal’s defense is based on making up unsubstantiated and counter-to-common-sense interpretations of “impeding”, he’s doomed to lose again. I don’t know a single non-cyclist who could even begin to appreciate this interpretation, much less agree with it.

      “there is no legal minimum speed” The name of the TX statute that Chipseal is alleged to have violated, 545.363, is “MINIMUM SPEED REGULATIONS”. The comparable law in CA, CVC 22400, is called “the minimum speed law”. While there is no explicit “minimum speed”, this law imposes an implicit minimum speed based on conditions, just as the ‘basic speed law” imposes an implicit maximum speed, based on conditions.

      “I am not impeding traffic.” That’s a matter of opinion and ultimately rests on semantics. If any case depends on convincing judges or juries to change their conception of what impeding is to this degree, I suggest that’s an insurmountable obstacle, practically speaking.

      I will concede this much. Chipseal might be able to persuasively argue the following.

      There are two questions here. First, was Chipseal impeding traffic? Second, if he was impeding traffic, was the impeding in violation of 545.363?

      On the first point reasonable people can disagree, but here is why we believe Chipseal was not impeding traffic [give it your best shot]. However, if you disagree with all that, and hold that he was never-the-less impeding traffic, it’s important to recognize that the impeding was lawful. The intent of the law, which is made obvious by its name, “minimum speed regulations”, is to require slow traffic that is impeding others to travel faster. The intent is not to ban anyone lawfully traveling on the road from being on the road.

      While 545.058 exempts bicyclists from ever being in violation of traveling on an improved shoulder, it and no other section ever explicitly requires bicyclists to ride on the shoulder. Finding the cyclist in violation of 545.363 essentially because he was not traveling on the improved shoulder creates a de-facto mandatory shoulder use law for bicyclists, which the legislature clearly did not intend, or they would have created such a law.

      In short, someone who is lawfully traveling on the roadway cannot be found in violation of the law for not going fast enough when he is already going as fast as is safe and reasonably possible.

  10. “actively involved in preventing that other user from proceeding.”

    Not true. I have heard of motorists getting tickets for driving 35 in a 50 on a 4 lane road. The decision is strictly left up to the officer as to whether to give out a ticket.

    • I have heard of motorists getting tickets for driving 35 in a 50 on a 4 lane road. The decision is strictly left up to the officer as to whether to give out a ticket.

      Exactly. To contend that a bicyclist traveling 15 when others are traveling 35+ is not impeding is to challenge the very foundation of what most people, and the law, considers to be impeding. If a motorist going 35 in a 50 is impeding even though there is another lane to pass, then surely 15 is impeding too. Basing your case on challenging this well-established definition of “impeding” is legal suicide.

  11. The state of Florida does not have a clear definition of what constitutes impeding traffic. That is the biggest problem a cyclist has, and in this case, the biggest problem ChipSeal has in his state, when it comes to being charged with impeding.

    In Florida, however, the statute is specifically worded that the operator of a motor vehicle is guilty of impeding traffic, which excludes cyclists. Lucky for me and other Florida riders.

    I recall reading of some case law where a court ruled that a cyclist operating in a normal manner is not impeding traffic. I cannot recall where I read that, but it would be useful for ChipSeal to have documentation of that particular ruling or similar ones.

    • I recall reading of some case law where a court ruled that a cyclist operating in a normal manner is not impeding traffic.

      I suspect you’re thinking of Trotwood v. Selz (google it), an Ohio case, and that’s not what they ruled, though that’s how it’s often (wrongly) summarized. Everything I’ve been saying here is based on that.

      What Trotwood said was that a bicyclist, or any operator lawfully traveling as fast as they reasonably can, cannot be in violation of the impeding law. That is, you can only be in violation of the impeding law if you’re impeding AND you could go faster. If you’re impeding but can’t go any faster, then you’re not in violation.

      Not all impeding is in violation of the law. Not recognizing this is the error the judge made in the jury instructions in the first case, which presumed that if he was impeding, then he was in violation. Even if you’re impeding, if you can’t go any faster and you’re otherwise acting lawfully then you can’t be faulted for not going faster! That’s the essence of Trotwood v. Selz.

      • It’s easy enough to create confusion or be confused by the word alone. Impeding in the practical, dictionary sense is different from impeding in the legal sense.

        That’s an unfortunate aspect of riders who are being charged with this sort of violation. I’ve been lucky twice in traffic stops, but only because the wording specifies motor vehicle operators.

        Along with the FTR laws, statutes referencing impeding should also be re-written to remove the ambiguity without penalizing cyclists. (opinion)

        • Remember the wording of the law: “…may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.”

          What do you think is the difference between the dictionary and that legal use of of “impede”? I see no difference.

          I mean, if you’re suggesting that “impede” in the legal sense means “in violation of the impeding law”, then the use of “impede” in the impeding law itself is not used in the legal sense!

          That is, say someone is driving down the highway and slows down to avoid some hazard, a slowing that impedes others. Is that impeding, or not? Legally, it is impeding, however, since it’s being done “for safe operation”, it’s not a violation of the impeding law.

          Perhaps an even better example is stopping for a red light. Clearly that impedes those behind you, but, of course it’s not a violation of the law because that impeding is being done in order to be “in compliance of the law”. But the point here is it’s still impeding, in both the normal and legal sense, it just happens to be impeding that is lawful!

          • Well, impede in the literal sense means to hinder. Impede in the legal sense apparently means not being able to drive exactly the speed you wish to in the lane you wish to even though other avenues of passage exist. Overall, you were not hindered in your driving. You simply chose to not take advantage of the available options.

          • Impede in the legal sense apparently means not being able to drive exactly the speed you wish to in the lane you wish to even though other avenues of passage exist.

            I don’t think that’s quite it. It has nothing to do with anyone’s “wish” – it has to do with their actual “normal” speed at that time. The general view seems to be that if their ability to continue traveling at that speed is hindered to some significant degree, then it’s “impeding the normal and reasonable movement of traffic”.

            I don’t understand why so many bicyclists want to deny that traveling much slower than others has a significant hindering or impeding effect on those others. If they want to consider themselves “hindered” or “impeded” by that, so what? That’s not even an anti-bike issue, because relatively slow travel that is significantly slower than others is considered by most to be impeding regardless of the mode of conveyance.

            The focus should not be on whether slow travel hinders or impedes others, but whether such hindering or impeding is unlawful when the “impeder” cannot go any faster.

          • I don’t think that’s quite it. It has nothing to do with anyone’s “wish” – it has to do with their actual “normal” speed at that time.

            Whatever speed they are traveling at – their “normal” speed – is of their own choosing. A speed limit is just that: a limit. It carries no mandate. One person’s normal speed is not necessarily another’s, which would leave us open to enforcing the law based on each individual plaintiff’s whim if that were in fact the standard. In the absence of a posted minimum speed I can’t see how this is enforceable.

            Now, the statue says: “An operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law”. How is changing lanes to avoid a slower moving vehicle not a “normal and reasonable movement”? Indeed, I would say it is expected of any licensed vehicle operator. Is it not the reason the second lane is there at all? If anyone is taking liberties with the interpretation of the statute I would suggest it is the Ennis PD*.

            *disclaimer: I am not an attorney nor do I play one on TV.

          • You and Keri and lots of other people like to say “All they have to do is change lanes”, but in fact they don’t want to change lanes if they don’t have to. I started a new post about this but never finished it.

            In any case, the act of changing lanes “mixes things up” and slows down throughput. Don’t forget that throughput has become the most important thing as far as most motorists are concerned. Another way to say slow down throughput is to say that something impedes it.

        • “I’ve been lucky twice in traffic stops, but only because the wording specifies motor vehicle operators.”

          Lucky for you we reformed our courts back in 1976, something that Texas still hasn’t done. Those judges in Texas really have to run for office the way that some of our judges did. We “sort of” have elections now, but not really.

          We had this crazy-quilt patchwork prior to the Constitutional amendments passed in ’68 which didn’t take effect right away, and such abusive traffic courts, that you would have like been found guilt of SOMETHING for driving that crazy thing around.

          Now, someone has to be an attorney to be a judge, but not back then and still not in many states.

  12. By the way, my comments regarding minimum speed and preventing overtaking are strictly my opinion.

  13. Don’t forget that throughput has become the most important thing as far as most motorists are concerned. Another way to say slow down throughput is to say that something impedes it.

    Right. The fundamental point is this. If you’re driving a Buick at 15 mph in a travel lane with a 35 mph max speed limit and 35-45 mph traffic, you’re just as likely to get a ticket for impeding traffic as you are for speeding if going 55 mph there, even if there are other lanes available for passing. This is how “impeding” is interpreted in our society, and it has nothing to do with an anti-bike bias.

    It’s only fair to apply the same interpretation/meaning of “impeding” to bicyclists in the same situation. It’s foolish to try to argue that 15 mph in a 35+ mph traffic is not impeding.

    The only defense is the one held up by Trotwood v. Selz: one cannot be legally faulted for going too slow if he or she is going as fast as is safely and reasonably possible.

  14. Drivers routinely make lane changes to pass slower drivers in the right hand lane; such behavior is the normal and reasonable movement of traffic, period. It happens everywhere, and no one thinks anything of it unless the slower driver is a bicyclist. Then the bicyclist is seen as an impediment because of motorist and cyclist prejudice.

    Fortunately in most (43) US states the “impeding traffic law” only applies to motorists, not the drivers of non-motorized vehicles, and two states have no such law (HI and MA). Only 5 states, CA, MI, NH, OH and TX have impeding traffic laws that are badly written to improperly criminalize bicyclists.

    A motorist that is “impeding traffic” can easily press the accelerator to increase their speed to a level that would be considered normal and reasonable for a motor vehicle driver, whereas a bicyclist cannot, and this critical distinction is why such laws should not and do not apply to bicyclists in most US states.

    Reed’s case is but a symptom of improper laws in 5 US states. The Selz defense (not Trotwood, which was prosecuting Selz) may or may work in Texas, but it should not be seen as a generally applicable precedent, rather it is a stop-gap measure until we can fix the bad laws in CA, MI, NH, OH and TX.

    Also note that the throughput arguments are specious because traffic lights are the main cause of delay, not slower drivers. Even if all the traffic was moving at Reed’s speed, they would still have to spend a substantial amount of time queuing at traffic lights, and these wait times are an even bigger hit to their trip times compared to when they are moving more slowly. These “speed of continuous flow/throughput” arguments only apply to grade separated freeways (with not at grade crossings or controls) where the traffic volumes are low enough that stop-and-go traffic doesn’t develop.

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