A Law Like No Other
Last week I served as one of three expert witnesses in traffic court. It was a citation for controlling the right lane (failing to ride far right) on a road with 3 lanes in each direction and a narrow, undesignated shoulder (looks like a bike lane, but not a bike lane). Because of the shoulder, winning required the firepower of a skilled defense attorney and experts on bicycling law, roadway design, law enforcement training and bicycling safety. I will write more specifically about this case, the arguments made and the ruling once I have the transcripts, but in the meantime I have some general thoughts to share.
The whole experience really brought home the inequity and bias we face. We have a very serious problem that needs to be solved. It is a problem that is at the core of why bicycling is perceived dangerous. It causes people to believe bicyclists have no right to the road, which in turn causes bicyclists to ride in ways that greatly increase their risk of crashing. Bicyclists who have learned to decrease their risk face interference from uninformed law enforcement. This has a dampening effect on successful behavior.
Our problem: A law like no other. A law that undermines safety.
Most laws are clear and reinforce safety.
Most traffic laws have a clear and effective purpose — to reinforce the rules of movement that make roadway users predictable to one another. These laws don’t interfere with road users’ ability to travel safely. They’re barely even noticeable to the conscientious driver, who appreciates enforcement of them because that makes the system safer for him.
When a normal traffic citation is challenged, it is challenged on the basis of whether or not the driver was breaking a clearly defined law. Did the driver make a complete stop at the stop sign? Did the driver enter the intersection before or after the light turned red. Was the driver going faster than the speed limit? Interpretation of the law itself is not the issue. The issue is whether or not the police officer accurately witnessed the infraction. In many cases, people contest traffic citations in the hope that the officer won’t show up in court (providing automatic dismissal), or they seek to have the points removed from their record. No one would ever argue that they were speeding or running a red light because it was safer.
316.2065(5) is no ordinary law.
The law governing bicyclist roadway position—316.2065(5)—does not reinforce the rules of movement or promote safety. Its historical basis for existing is to increase the perceived convenience of one class of road user at the expense of another. It offers no safety benefit to any road user. In fact, its core requirement runs counter to established best practices of defensive driving for bicyclists. As a result, this law forces bicycle drivers to legally justify defensive driving.
Bicyclists are the only vehicle drivers who must defend themselves to an officer or judge for driving defensively.
When a citation for 316.2065(5) is challenged, the dispute is not over what lane position the officer witnessed, but the officer’s interpretation of the law. The text of the law is too open to differing interpretations. This is a consequence of the law’s original intent running counter to the conventional purpose of traffic laws.
The primary paragraph of the law requires a bicyclist to ride in a bike lane or as far right as practicable. This requirement presents so many safety hazards and constraints to reasonable operation that it necessitates three subparagraphs of exceptions. The subparagraphs innumerate some, but not all, operational and safety reasons a bicyclist must ride away from the right edge or bike lane. They make up 2/3 of the text of the law, but they are often ignored by police officers and sometimes disregarded by hearing officers. Even when addressed, their meaning is often in dispute. The dispute feels a lot like bigotry, but to be fair it is mostly caused by people trying to view this law in the context of laws being for the purpose of safety. The fact that this one isn’t creates cognitive dissonance.
What is practicable, and who decides?
This is subjective. If it was even remotely practicable to be near the edge of the roadway, we might all agree that the person whose skin is in the game should decide.
What defines the edge of the roadway: the edge line, the gutter seam, the curb?
A legal answer to this can be found, but not in the statute. This information was critical to last week’s case (more in a future post).
Who decides what is “reasonably necessary.”
The word “reasonable” is prejudicial in that it implies a bicyclist might be unreasonable in choosing to stay away from the edge of the road or bike lane.
What constitutes a potential conflict? Does it have to be imminent, or can it be possible?
A defensive bicycle driver stays away from parked cars, whether or not he can confirm they are occupied. He rides in a high-visibility position whether or not there is other traffic approaching from behind or on conflicting paths. He is proactive because it’s not practicable to be reactive.
Who determines whether there was the potential for a conflict?
This is subjective, too. In a just world, a bicyclist’s defensive driving decisions would not be second-guessed.
How wide is a sub-standard width lane?
The definition used for this statute is different from the common definition of a standard lane. Lanes that are 10-13ft wide are considered “standard” lanes for all other applications, but “sub-standard” for the purpose of this statute because they are not wide enough to share.
What size vehicle is considered when determining if a lane is too narrow to share? And what is the speed differential at which that vehicle is passing?
Lane width— In its guidance for bicycle facilities, FDOT defines 14ft as the minimum width in which a bicycle and car can be operated side by side within the lane. 14ft provides: the minimum operating space a bicyclist needs (4ft); the minimum statutory passing clearance (3ft); and space for a 7ft-wide vehicle.
Vehicle width— Only small passenger vehicles are ≤7ft wide. An F150 with standard mirrors is 8ft wide. A super-duty F-series truck is 8.6ft wide. The ubiquitous landscape trailers are required to be ≤8.5ft, but they are frequently wider and have all manner of things protruding from the side of them. Box trucks, buses and tractor trailers have mirrors that can extend to 10ft.
Speed and clearance— At speeds over 30mph, 3ft is nowhere near enough passing clearance, especially from large vehicles. Also, what is the margin of error for the fact that most people don’t know how wide their car is or how far the right side is from something to the right of it?
In order for the exceptions to exonerate a bicycle driver, he must challenge a citation in court. That is an unjust burden—way beyond the reach of low income citizens who choose a bicycle as an affordable means of transportation.
So, despite the exceptions, which are intended to account for reasons it would be unsafe and unreasonable (i.e. not practicable) to keep right or stay in a bike lane, the law is still interpreted in the most restrictive way.
There are many advocates who argue that the exceptions to 316.2065(5) (and similar laws in other states) give bicyclists the right to control the lane. They might, in most circumstances, if interpreted properly…or liberally. But they almost never are interpreted properly. In order for the exceptions to exonerate a bicycle driver, he must challenge a citation in court. That alone is an unjust burden, not something to be shrugged off. It is way beyond the reach of low income citizens who choose a bicycle as an affordable means of transportation.
How enforcement of 316.2065(5) plays out for lawful bicycle drivers.
The following is the abbreviated version of a typical encounter as has been related to me by numerous bicyclists:
A law enforcement officer encounters a bicycle driver who is lawfully controlling the lane for the purpose of driving defensively. The officer, who knows little or nothing about safe bicycling practices, and is only vaguely familiar with the first paragraph of the law, stops the bicyclist.
The bicyclist, who was riding like that because he knows the law, informs the officer that he has a right to be in the lane. The officer believes he does not. The officer believes the law wouldn’t require unsafe operation because a) it confirms her “common sense” belief that bicyclists should stay out of the way, and b) laws are supposed to reinforce safe operation.
In a typical traffic stop scenario, if the bicyclist complies and gives up his right to be in the lane, the officer won’t bother to write a citation. But that forces the bicyclist to ride in an unsafe position for fear of being stopped again.
Finding such capitulation unpalatable, the bicyclist refuses to give up his right to be in the lane and the officer gives him a ticket for violating 316.2065(5) — a $64 fine.
Now the bicyclist is faced with the following choices:
1) Pay the ticket and
- continue riding in the lane and risk receiving additional tickets.
- relinquish his right to drive defensively to avoid receiving additional tickets.
2) Contest the ticket in court
- relying on his own knowledge of the law.
- with the aid of an attorney.
None of these options are without cost to the bicyclist.
1) Paying the ticket costs him $64, but that isn’t the end:
- If he continues to practice defensive bicycle driving, he faces the potential for continued citations.
- If he relinquishes his right to drive defensively, he faces increased risk of being hit by a car.
2) Contesting the ticket costs a minimum of the time and expense of going to court (lost wages, transportation, parking).
- Defending himself is the least expensive option, but it is risky. As noted above, there are many points of dispute in the interpretation of statute. The officer is usually considered by the court as an expert on the law. The courts often won’t regard an interpretation by a civilian or civilian organization as carrying the same weight as that of the police officer. In addition, traffic courts often have a full docket, causing hearing officers to be rushed. Many seemingly clear-cut cases have been lost because of these factors.
If the bicyclist loses, he will have to pay the fine and the court costs. Plus the officer is now more certain of an incorrect interpretation of the law. So, he faces the continued choice of risking additional tickets or relinquishing his right to drive defensively.
- Hiring an attorney offers the highest likelihood of success, but it is the most costly. The lawyer must be paid regardless of whether the bicyclist wins or loses. Lawyers cost considerably more than $64. Even winning will not keep the bicyclist from receiving another ticket by another uninformed officer in another jurisdiction (or even in the same one).
What makes this situation even more unfair is that there are no repercussions for the officer. If the citation is upheld, the officer is vindicated and the bicyclist pays the fine plus his legal fees, court costs and whatever costs were associated with the time involved to go to court. If the citation is dismissed, the bicyclist still pays his lawyer and whatever costs were associated with the time involved to go to court. The officer pays nothing. She even gets paid for being there. In many cases, the officer fails to show up in court. When this happens, the citation is dismissed, but the bicyclist still pays whatever costs were associated with going to court. If he’s hired an attorney to increase his chances of victory, he will still have to pay the attorney.
In every scenario, the bicyclist suffers some loss, even though he was operating lawfully! The more he invests in defeating the citation, the more he loses, even if he wins. To add insult, he was probably operating that way because he took the time to educate himself about the law and safe cycling practices. In other words: he’s a conscientious citizen.
That’s not how the system is supposed to work. It certainly doesn’t work that way for conscientious motor vehicle drivers. A conscientious motor vehicle driver has a near-zero risk of having to defend himself against an unwarranted citation.
This is oppressive.
The lowest cost option is to pay the fine even though the bicyclist has broken no laws. The system allows law enforcement officers to operate on assumptions and common misconceptions with impunity, inflicting costs on civilians. The lack of accountability for the officer provides an opportunity for abuse as a harassment tool against bicyclists. Officers can simply write unwarranted citations, then fail to go to court if they are challenged. In this way they can inflict a defacto penalty even when they know it is not legitimate. Yes, this happens.
Those who are able to choose another mode of transportation can opt out of this oppression. Those who cannot are left with bad options, and at the mercy of a biased system.
We need equity and a safety net.
For years, we have worked to create publications and videos to train law enforcement on the needs of bicyclists. We have tirelessly explained the reasons bicyclists may lawfully control the lane. We have tried to help them understand that bicyclists should not be second-guessed for choosing a position which improves their vantage and visibility, thus reducing their risk of being hit. But that strategy is doomed to failure as long as 316.2065(5) exists. There is no way to rid the system of bias and misinterpretation when the law itself is designed to be interpreted against the bicyclist’s interests.
The only viable solution is to eliminate 316.2065(5) and make bicyclist legally equal to the drivers of other slow vehicles AND give them the same protection as drivers of other narrow vehicles.
When traveling slower than other traffic on a two-way street, bicyclists use the right thru lane, unless preparing for a left turn or passing a slower vehicle or obstacle. When traveling slower than other traffic on a one-way street, bicyclists use the outside thru lanes, unless moving to the other side of the road or passing a slower vehicle or obstacle. Bicycle lanes are defined as preferential use lanes and they should be optional, as they are for other user types (HOV and Transit). There are many dynamic reasons for a bicyclist to avoid an edge bike lane, bicyclists should not be required to defend their reasons for doing so.
Bicyclists must be explicitly guaranteed the right to a full lane, as are motorcyclists. Narrow vehicle drivers have special considerations with regard to visibility, vantage and management of their lane space. Bicyclists have the same needs as motorcycle and scooter drivers, but our vehicles are less robust and we are passed at higher speed differentials. There is no legitimate reason for us not to have the same protection.
In the meantime (and probably for some time after laws are made equitable), bicyclists need a safety net to neutralize the impact of uninformed law enforcement officers. We need a system by which a bicyclist can be guaranteed consideration of a pre-trial motion to dismiss a ticket. This will prevent clear-cut cases from taking court time and resources, as well as the bicyclist’s. Filing a motion is still an imposition, but less so that having to take a day off from work to go to court. Advocacy organizations can make the process easier by providing forms and instructions.
Dismissals need to be accompanied by a notification to the citing officer that he or she was wrong about the law. There needs to be some educational feedback.
It is time to stop nibbling around the edges of this problem. It is time to stop trying to tweak the exceptions to a discriminatory law. It is time to stop trying to explain how the exceptions override the law itself. I have seen too many people have to go to court when they did nothing wrong. I’ve seen conscientious bicycle drivers forced to spend time and money defending themselves for defensive driving. I’ve even seen some lose despite the fact they were operating 100% legally in one of the ways clearly defined by subsection 3.
This law must go. It’s time to kill it.
I have used the Florida version of this statute here, but this is a national problem. It’s time for all advocacy organizations to work together to solve it. Regardless of whether our primary objective is increasing participation or promoting education, this law is a problem that threatens all of us because it reduces bicyclists to second class citizens.