Arizona Road Cyclist News

February 21, 2010 -- 3 Cyclists Win in Court on "Riding to the Right"

My thanks to Ed Beighe, who maintains the Arizona Bike Law Blog, for drawing my attention to several cases involving cyclists not riding far enough to the right to suit a police officer. All three cyclists lost their cases in traffic court, but all three later won on appeal.

Many of us have had a police officer pull us over or yell at us over a bullhorn for not riding far enough to the right to suit the officer. The officer will often assert that cyclists are required "to ride as far to the right as possible." That is not true. The officer will also often state that you were stopped for your own safety, which is paternalistic poppycock. With the exception of intoxicated drivers, against whom there is no real protection, motorists will almost never drive into the rear of a cyclist who is riding out in the lane, but they will strike cyclists by misjudging the width of their vehicles when attempting to pass too close. Riding too far to the right in narrow traffic lanes is dangerous.

Arizona Revised Statute (ARS) 28-815 reads that "A person riding a bicycle on a roadway at less than the normal speed of traffic at the time and place and under the conditions then existing shall ride as close as practicable to the right-hand curb or edge of the roadway...."

The two portions in italics are important. The first basically says that unless a cyclist is riding slower than the traffic present at the time, there is no obligation to ride to the right.

The second point is that when traffic does require that a cyclist ride to the right, the requirement is to ride as far to the right as "practicable," not as far to the right at "possible." Just how close to the edge of the road is it "practicable" to ride? This is obviously open to interpretation. Most cyclists who have given the matter some thought believe that riding about two feet to the left of the edge of the road or of the gutter pan is about as far to the right as it is practicable to ride. The law itself spells out some examples of when it is not practicable to keep to the right:

1. If overtaking and passing another bicycle or vehicle proceeding in the same direction.

2. If preparing for a left turn at an intersection or into a private road or driveway.

3. If reasonably necessary to avoid conditions, including fixed or moving objects, parked or moving vehicles, bicycles, pedestrians, animals or surface hazards.

4. If the lane in which the person is operating the bicycle is too narrow for a bicycle and a vehicle to travel safely side by side withing the lane.

It should be pointed out, that in the statutes, the word "vehicle" refers to a motor vehicle; a bicycle is not a vehicle according to Arizona traffic laws.

How wide must a lane be before it is safe for a cyclist to share it with a motor vehicle? The general view is that any lane narrower than 14 feet, not including the gutter pan, is too narrow to share. Richard Moore, a traffic planner and cyclist, has created a diagram in PDF format showing how this width is calculated, which you can view by clicking here. Many lanes on Arizona urban streets are only 11 feet wide, and are therefore not wide enough to share, and the cyclist is not only permitted but is actually encouraged to move out into the lane in order to discourage drivers of motor vehicles from passing dangerously close.

Subsection B of the statute reads: "Persons riding bicycles on a roadway shall not ride more than two abreast except on paths or parts of roadways set aside for the exclusive use of bicycles." This subsection has an upside and a downside for cyclists. On the negative side, cyclists who ride more than two abreast on the street outside of a bike lane would seem to be violating the statute under all conditions. What if cyclists group more than two abreast at a stop light? What if one cyclists is passing two other cyclists who are riding two abreast? If a group of cyclists takes over a lane that is too narrow share with motor vehicles, it should not matter how many of them ride abreast as long as they all ride within a single lane. However, I would not want to have to defend myself against a traffic ticket written under those circumstances.

On the positive side, there is an implied right to ride two abreast, no matter how narrow the lane and no matter how much it annoys motorists or police officers, and that right has been upheld in court.

Unfortunately, many police officers assigned to traffic duty have no more than a superficial understanding of traffic laws, and although the justices and magistrates who conduct traffic court are pledged to neutrality, many of them will bend over backwards to find in favor of the police officer, especially in rural jurisdictions, suburbs, and rural communities. However, if the hearing officer disregards the law in deciding against the accused, the accused has a right to appeal to superior court, where a trained judge can usually be expected to rule according to the law.

On December 4, 2007, cyclists Ben Goren was charged with violating ARS 28-815 when riding southbound on Rural Road in Tempe in the left wheel lane of the curb lane of the street. In court, the officer told the hearing officer that he believed that Mr. Goren should have been riding to the very right hand side of the lane with his handlebars overlapping the sidewalk, which would have required him to ride in the gutter with no room for maneuvering, or better yet, on the sidewalk, although in Tempe's University District, signs are posted which specifically prohibit cyclists from riding on the sidewalk. He said the lane was 12 feet 10 inches wide, which he said was wide enough for a bicycle to share with a motor vehicle.

Mr. Goren measured the lane width at 11 feet, not including the gutter pan and maintained that the lane was not wide enough to share. He submitted a drawing, which he produced, and a pamphlet published by the Arizona Department of Transportation to support his argument.

The hearing officer found Mr. Goren in violation of the statute. Although he agreed that Mr. Goren had a right to ride in the center of the lane, he ruled that by riding in the left wheel track, Mr. Goren was not giving vehicles in the next lane sufficient space to pass him with three feet of clearance and thereby obey ARS 28-735.

The superior court judge overruled the hearing officer, writing in his decision: "The duty imposed in A.R.S. § 28-815(A)(4) is applicable to bicyclists not motor vehicles." In other words, drivers of motor vehicles are required to give cyclists three feet of clearance when passing, but cyclists are not required to give three feet of clearance to motor vehicles. You can read the appeal court ruling in PDF format by clicking here, and you can listen to the audio of the original traffic hearing by clicking here.

Pima County sheriff's deputies have a history of harassing Tucson-area cyclists on the weekly Shoot Out Ride. Cyclists have begun fighting back in the courts by appealing unjust traffic citations and convictions to Superior Court and wining.

In one Pima County case, cyclist Corey J. Piscopo was cited for not riding his bicycle far enough to the right in Madera Canyon. The cyclist was represented in court by attorney Erik Ryberg, who also maintains the Tucson Bike Lawyer Website. The defendant argued that the 11-foot wide lane was not wide enough to share, and he therefore had the right to ride out in the lane. The Pima County Justice Court ruled against him, but the cyclist prevailed on appeal. The appeal judge's succinct ruling in PDF format is available by clicking here.

Yet another Pima County case involves a cyclist, Jonathan Roberts, who was ticketed by a sheriff's deputy for riding two abreast. The cyclist testified that he was riding a rotating pace line, that Arizona law permits cyclists to ride two abreast, and that the lane was too narrow to share with a motor vehicle. As is too often the case, the traffic court ruled against the cyclist and in favor of the deputy. The traffic court's ruling was overturned in Superior Court on appeal on January 6 of this year. The superior court did not rule on the question of whether the cyclists had an absolute right to ride two abreast, noting that the 11-foot-wide lane was too narrow to share and that Mr. Roberts therefore had a right to ride out in the lane.  The Superior Court judge's decision in PDF format can be read by clicking here.

These three rulings are important for cyclists, because they can be cited in traffic court as precedent by any cyclist who is unjustly ticketed for not riding far enough to the right to suit a police officer. Perhaps if more hearing officers in traffic court realized that cyclists are going to appeal rulings that are not based on the law, they would be more inclined to do their jobs properly, and that in turn might in turn motivate police officers to respect cyclists' rights to the road and only write citations when a cyclist actually violates a statute.

January 2, 2010 -- Cyclists Acquitted of "Operating a Bike in the Roadway" in Ohio

Arizona Road Cyclist News subscriber Rob Walton sent me a link to an interesting story about a court decision involving cyclists in Ohio. The decision was handed down over a year ago on December 23, 2008 concerning a motion to dismiss the case against two cyclists who were charged with resisting arrest, disorderly conduct, "Operating a bike in the Roadway," and failure to comply with the order or signal of a police officer. The case is of interest, because it can be cited in other court proceedings [State v. Patrick, 153 Ohio Misc.2d 20, 2008-Ohio-7142].

If you would like to read the judge's 11-page ruling in PDF format as he wrote it, you can do so by clicking here. For those who want a quicker read, I have provided a three-paragraph summary below.

A sheriff's deputy of Lawrence County, Ohio was driving on a two-lane road when he came upon two cyclists riding side-by-side and traveling in the same direction. The officer passed the cyclists and then noted in his rearview mirror that the cyclists did not move into single file to allow other motorists to pass. The officer pulled off the road and told the cyclists to "pull over," which they refused to do. The officer got back into the cruiser and pursued the cyclists with his siren and lights on and told the cyclists through his public address system to pull over. When the cyclists didn't comply, he pulled up beside them, rolled down his window, and told one of the cyclists that he was under arrest and to pull over. The cyclists continued to pedal on.

Then the officer then pulled in front of the cyclists and attempted to block the roadway with his cruiser, but the cyclists rode around him. The officer got back into his car, got in front of the cyclists again, and shot one of the cyclists with a taser. He then arrested the cyclist.

The judge ruled that the cyclists may have been "inconsiderate, rude, and possibly dangerous," but that they had violated no law. He noted that "Riding a bike in the Roadway" is not illegal in Ohio and that cyclists are permitted to ride two abreast. There is no statute in Ohio that requires bicyclists to go single file to permit traffic to pass. The judge also wrote that a charge of impeding traffic could not be sustained, because the cyclists would have to be traveling at a speed that is "unreasonable for a bicycle in order for there to be a violation." Therefore, the judge ruled that "there was no probable cause" to ask the cyclists to pull over, because the deputy had witnessed the cyclists' actions and [should have known] that they had done nothing illegal. Therefore, although the judge remarked that the cyclists' actions were unwise, he wrote that the cyclists "had a fundamental right to be left alone under the Fourth Amendment...."