Bike Law University
Bike Law University
These resources give greater depth and context — including comparative charts — to our state law resources and our bicycle friendly state rankings.
Click on a topic below to see how your state's laws compare — and subscribe to the League blog to stay up-to-date with all Bike Law University posts.
What are Safe Passing Laws?
Safe passing laws require vehicles to pass each other at a safe distance. In most states, the amount of space necessary to be “safe” isn’t defined, but, in a growing number of states, there are laws that say a safe distance between a bicyclist and a motorist is not less than three feet.
Why should you care?
A safe passing law is valuable because it raises awareness as to how vehicles should share the road. It may also lead to enforcement actions against unsafe passing or be used in legal actions resulting from collisions or other incidents between road users.
Who has them?
All states have some version of a safe passing law. In 32 states, and the District of Columbia, the safe passing law explicitly mentions bicyclists. In the other 18 states, bicyclists are protected by safe passing laws written with no distinction between bicyclists and other road users.
In 24 states, and the District of Columbia, there is a defined distance standard — typically three feet — which sets the minimum distance required for safe passing. The other 26 states do not define what constitutes a safe distance in terms of feet. There are four states – Oregon, Rhode Island, Washington, and Vermont – which have laws that do not define a minimum safe distance in terms of feet, but are significantly different than the Uniform Vehicle Code in a way that provides more protection to bicyclists.
Spotlight State – New Hampshire
New Hampshire has a great law regulating safe passing because it incorporates several different concepts to ensure that a bicyclist is protected. The law states:
Every driver of a vehicle, when approaching a bicyclist, shall insure the safety and protection of the bicyclist and shall exercise due care by leaving a reasonable and prudent distance between the vehicle and the bicycle. The distance shall be presumed to be reasonable and prudent if it is at least 3 feet when the vehicle is traveling at 30 miles per hour or less, with one additional foot of clearance required for every 10 miles per hour above 30 miles per hour. – N.H. Rev. Stat. Ann. §265:143-a
This law touches on three important concepts:
- Due care – By saying that a driver must exercise due care the law creates a relationship of responsibility for the driver of a vehicle approaching a bicyclist. Language stating a due care requirement may make it easier for bicyclists to hold a driver liable if hit.
- Defined distance – By stating that a reasonable and prudent distance is one of at least 3 feet the law makes it easy to publicize what is regarded as a safe distance and reinforces the most commonly required safe passing distance.
- Variable distance – By stating that a reasonable and prudent distance is one that varies with increased speed, the law makes it clear that three feet is not an absolute. What is safe can vary depending upon speed and road conditions. Recognizing this is rare amongst state laws that define a safe distance.
Where did they come from?
The first state to pass a three foot law was Wisconsin in 1973. Safe passing laws that do not define a distance are generally derived from the model laws found in the Uniform Vehicle Code (UVC), which was last updated in 2000.
There are three UVC sections that have an impact on safe passing laws. If you would like to know more about safe passing in your state, or you are considering new legislation in this area of law, finding your state’s equivalent statutes for the following UVC sections would be a good place to look.
UVC 11-303: Overtaking a Vehicle on the Left – This section is the source of the safe distance language used by a majority of states.
UVC 11-305: Limitations on Overtaking on the Left – This section generally deals with crossing the center-line of the roadway in order to pass another vehicle. Crossing the center line can be relevant to safe passing laws because a vehicle may have to cross the center line in order to provide a safe distance while passing, therefore it is important that vehicles are allowed to do so.
UVC 11-306: Further Limitations on Driving on Left of Center of Roadway– This section deals with crossing the center-line of the roadway in order to pass when there are specific road circumstances that compromise visibility. Since it only applies when there are specific road circumstances, like a curve or slope that may affect visibility, it is less likely to create problems when interacting with a safe passing law.
Click to download the chart of safe passing laws for all 50 states and the District of Columbia.
What are helmet laws?
Helmet laws require any person on a bicycle wear a helmet. All current helmet laws are directed at persons under the age of 18. No state requires mandatory helmet use by all bicyclists. In many states, helmet laws can be enforced against the person on the bicycle or against a parent of that person. Some states with a mandatory helmet use law limit whether compliance with the law can be considered in civil lawsuits in order to prevent their laws from limiting the recovery of bicyclists who are injured. There are many other variations on the enforcement and effect of mandatory helmet use laws, as discussed through the laws of our spotlight states.
Why should you care?
The use of helmets is perhaps the most common recommendation for safer bicycling. The League has encouraged bicyclists to wear helmets for more than 25 years, and our affiliated clubs and advocacy groups typically require their use on organized rides. However, the League does not support mandatory helmet laws because of the many potential unintended consequences.
The experience of countries with greater bicycle use than the United States tells us that safer bicycling comes from many policy decisions — especially safer infrastructure — and does not require mandatory helmet use laws. Mandatory helmet use laws may hurt bicyclist safety overall by discouraging bicycling, by promoting the idea that it is an unsafe activity or by raising a barrier to transportation choice — despite being the safest choice for an individual cyclist. We all want safer bicycling and policies that encourage more people to ride, provide appropriate facilities, and educate all road users about safely sharing the road. These are likely to be more effective in the long term.
Who has them?
Twenty-one states and the District of Columbia have laws that require persons under the age of 18 to wear a helmet. Within that, however, the age threshold varies widely. Of states that require helmet use, most (12) only require helmets for persons less than 16 years of age. Of the 15 states that require helmet use, the District of Columbia and Virginia — which does not require helmet use — maintain a law that limits the consideration of failure to wear a helmet in a lawsuit. This protects the ability of a bicyclist who chose not to wear a helmet to recover damages if they are injured in a crash. The need for and effect of such a law may be more or less necessary depending upon how liability or fault is determined in a state.
Click on the image to view the full chart showing the breakdown of helmet laws across the country.
Where did they come from?
The first state to pass a mandatory helmet law was California in 1986. The Consumer Product Safety Commission has had mandatory helmet performance requirements for helmet manufacturers since 1999. As of the last revision to the Uniform Vehicle Code (UVC) in 2000, there is no UVC section equivalent to a helmet law.
Spotlight States – New York, New Jersey, and Pennsylvania
When a community chooses to adopt a mandatory helmet use law there are many things to consider. The most common legal concept that varies between states is the age of the persons affected by the mandatory use law. The age standards of the states that have mandatory helmet use laws are detailed in the chart below. States have enacted laws that include some other legal concepts that I would like to highlight. No one state has a statute that includes all of the concepts that may be useful to consider when evaluating a mandatory helmet law, so here we’ll look at three.
New York – VAT §1238
Limitation on Effect of Law – When you create a mandatory helmet use law you open up injured bicyclists to losing out on their ability to recover damages when they are injured if they were not wearing a helmet in compliance with the law. In certain situations, such as being hit by a speeding car, this could create inequity between injured bicyclists, or the families of deceased bicyclists, because of the law rather than the circumstances of the crash. By limiting the ability to consider compliance with a mandatory helmet use law ensures that the focus is on the circumstances of a crash rather than the compliance of the bicyclist with the law.
(7) “The failure of any person to comply with the provisions of this section shall not constitute contributory negligence or assumption of risk, and shall not in any way bar, preclude or foreclose an action for personal injury or wrongful death by or on behalf of such person, nor in any way diminish or reduce the damages recoverable in any such action.”
Dismissal for hardship – In the United States data suggests that helmet ownership and usage is lower among low-income communities. Free or subsidized helmet programs have been shown to be an effective intervention to increase ownership and use within low-income communities. By providing for a waiver due economic hardship the law helps ensure that the impact of a mandatory helmet use law is not felt disproportionately by low-income communities or provide limit the ability of low-income individuals to take advantage of bicycling as a form of cheap transportation.
(6)(c) “The court may waive any fine for which a person … if the court finds that due to reasons of economic hardship such person was unable to purchase a helmet or due to such economic hardship such person was unable to obtain a helmet from the [statewide helmet distribution program].”
New Jersey – §39:4-10.2
Dedication of fines
(b) “All money collected as fines … shall be deposited in a nonlapsing revolving fund to be known as the ‘Bicycle and Skating Safety Fund.’ Interest earned on money deposited in the fund shall accrue to the fund. Money in the fund shall be utilized by the director to provide educational programs devoted to bicycle, roller skating and skateboarding safety. If the director … also may use … the money to assist low income families in purchasing approved bicycle helmets.”
Pennsylvania – 75: §3510
Dismissal for purchase – The purpose of a mandatory helmet use law is to ensure that people have and use helmets while bicycling. By providing a waiver of a fine for a violation of a mandatory helmet use law if a bicyclist can show the purchase of a helmet a bicyclist is given an incentive to ensure they can comply with the law in the future.
(b)(2) “If a person receives a citation … a [ judge] shall dismiss the charges if the person prior to or at the person’s hearing displays evidence of acquisition of a helmet … [judge]. Sufficient evidence shall include a receipt mailed to the appropriate court officer which evidences purchase or transfer of such a helmet from another helmet owner, evidenced by a notarized letter.”
Religious exception – Some religions have beliefs that are inconsistent with properly wearing a bicycle helmet. For instance, devout Sikhs are expected to wear a turban which a bicycle helmet cannot accommodate. By providing a religious exception to the application of a mandatory helmet use law these religious communities are not disproportionately affected by the law and continue to use and enjoy bicycles.
(b)(3) “This section shall not apply to a child under 12 years of age who can produce a statement from the family’s church authorities attesting that it is against the tenets of the family’s religion to wear a helmet.”
What are they?
Share the Road license plates are specialty plates for cars that show support for the bicycling community. Specialty license plates are usually created after a legislative or administrative process that involves a certain amount of guaranteed sales. Plates can usually be bought at any time and often provide dedicated funding for an advocacy organization in a state.
Why should you care?
In many states, funds gained through Share the Road license plates are set aside for bicycle safety or education programs, or are shared with bicycle advocacy organizations in the state. In this way, Share the Road plates can be an important tool to ensure that there is dedicated funding for bicycling advocacy organizations or programs in addition to spreading the valuable message to “share the road.” Specialty plates can also be a form of outreach for bicycling advocacy organizations because they are purchased through the state Department of Motor Vehicles or equivalent agency and may expose [unfinished sentence].
Who has them?
Twenty four states have some version of a “Share the Road” plate. In 15 of those states, a bicycling advocacy organization is identified in the law or otherwise to receive funds from the program. In two states, Connecticut and West Virginia, a law is on the books but there is currently no way to purchase the specialty plates.
Where did they come from?
The first state to issue a Share the Road plate was Florida in 1999. For more information on how Share the Road plates began please visit this website: http://sharetheroad.org/the-story/. As of the last revision to the Uniform Vehicle Code (UVC) in 2000, there is no UVC section relevant to the creation and operation of a share the road license plate program.
Spotlight States – Mississippi and Iowa
Mississippi is one of 11 states that designate a bicycling advocacy organization as the recipient of funds produced from the sale of “share the road” specialty license plates. The Mississippi law also gives its chosen bicycling advocacy organization, the Bicycling Advocacy Group of Mississippi, better known as Bike Walk Mississippi, an advisory role in the design of the plates.
In Iowa, an organization can get a specialty license plate through either a law or administrative process. The Iowa Department of Transportation (DOT) sponsored the Iowa Bicycle Coalition to create a specialty plate administratively. The Iowa Bicycle Coalition had complete control over the design of the plates, but had to pre-sell 500 plates in order to complete the administrative process. There are now more than 1,300 Share the Road plates on the road and it is the second highest selling specialty plate in the state.
Click image for the full chart.
Unlike most of the laws highlighted in this series, the laws that enable specialty license plates actively involve a state agency. This can be great because it gets advocacy organizations to work together, but it can also create issues. Some of the issues that appeared as I did research on the subject include:
- Threats to funding dedicated to an organization by statute due to state budget issues
- Administrative complexity related to altering license plate designs
- Costly and time consuming start-up costs related to pre-selling plates
- Costumer confusion regarding whether a plate purchase includes a membership with the organization it benefits
- Lack of information sharing between the issuing state agency and the benefitted organization, so valuable information regarding customers is not available for the benefitted organization’s use
I heard several strategies to address these issues including:
- Partnering with other organizations that benefit from specialty license plates to reform the administrative processes surrounding changing plate designs, information sharing, and start-up or to protect the dedicated nature of funding from plate sales
- Work with the issuing state agency at both state and local levels to ensure that retail outlets have information that effectively presents the specialty plate and its purpose
- Survey members so that they are aware of the specialty plate creation process and the difference between plate purchase and membership
- Dedicate some funding raised through a specialty plate to advertisement and outreach to sell more specialty plates
Questions? Contact me at email@example.com.
What are they?
Automobiles provide a shell of protection for their users — creating a safety disparity between cars and other road users. This is not to say non-automobile forms of transportation aren’t safe, but simply that there is a difference between what occurs when a car is hit at 25 miles-per-hour and what occurs when a pedestrian is hit at 25 mph. While the percentage of motorist deaths has fallen, the percentage of road fatalities that are bicyclists and pedestrians has grown in recent years (from 12 percent to 16 percent).
Vulnerable Road User laws increase protection for bicyclists and other road users who are not in cars. They are relatively new and states have chosen to protect vulnerable road users in a variety of ways. This includes usually involves 1) harsher penalties for the violation of existing laws when that violation impacts a defined set of road users or 2) the creation of new laws that prohibit certain actions directed at a defined set of road users.
Click the image above for the full chart.
Why should you care?
Safety: The vast majority of VRU laws provide for increased fines or civil liability in cases where a vulnerable road user is injured or killed because of negligence or as the result of a traffic violation. These laws increase the cost of unsafe practices that impact bicyclists and provide an incentive for safer driving practices, especially around cyclists and pedestrians. In this way the laws are much like increased fines in work zones, which promote construction worker safety. VRU laws recognize that the type of simple negligence or traffic violations that may result in minor collisions between cars can have disproportionately severe results when a vulnerable road user is involved and provide ways to address those divergent results.
In some states VRU laws include the option or mandate that a person convicted of injuring or killing a vulnerable road user attend a hearing. Without these laws, a driver who injures or kills a bicyclist may simply pay a fine through the mail — despite the severity of the impact of his or her actions. These hearings can provide a chance for both sides to meet and tell their stories, similar to victim impact panels that are a feature of DUI offenses. The League believes the experience of a hearing is a valuable tool for addressing the separateness between motorists and bicyclists — and endorses requiring a hearing as part of our Model Legislation (http://www.bikeleague.org/legacy/action/bikelaws/modellaws.php).
VRU laws may be an important and effective part of messaging about road safety. The VRU concept is inclusive and multi-modal. It provides a messaging and legal framework for a wide range of advocates interested in road safety that highlights and increases awareness of the inherent safety disparity between road users encased in a protective shell and those who are not. As a newer concept, it has the potential to engage law enforcement, judges, and juries in a way that they have not been been before and shift perceptions. While these individuals or groups may not always understand what it is like to be a cyclist, at one time or another everyone has been a vulnerable road user.
A VRU law may increase access to justice. Vulnerable road users, unlike automobile users, may lack the evidence and expensive property damage that is created in a car crash. Statutory civil penalties may provide an incentive for lawyers to work with vulnerable road users to recover damages and recognize the serious of vulnerable road user crashes. Criminal penalties provide an additional enforcement tool for police and a framework for better traffic enforcement.
Who has them?
Five states – Delaware, Hawaii, Oregon, Vermont, and Washington – have VRU laws that define a set of road users as vulnerable and provide specific processes and penalties for actions directed at those users. The District of Columbia and 17 other states in some way address vulnerable road users by prohibiting certain actions — such as harassment or the throwing of objects — or by providing the ability for persons to be charged with greater penalties when their actions result in the injury or death of a vulnerable road user.
Where did they come from?
The first state to pass a vulnerable road user law, which defined a set of road users as vulnerable and provided specific penalties for actions directed at those users, was Oregon, in 2007. Many of the other laws that protect vulnerable road users from certain actions were passed in response to tragedies caused by motorist-bicyclist collisions. As of the last revision to the Uniform Vehicle Code (UVC) in 2000, there is no UVC section equivalent to vulnerable road user laws. The closest relevant section is UVC 11-1111, which deals with glass and other substances likely to injure on a roadway. Some variation of UVC 11-1111 has been adopted in a majority of states.
Spotlight State: Oregon
Oregon enacted the first Vulnerable Road User law in the U.S. in 2007. The law provides a definition of vulnerable users and sets out distinct penalties for the serious physical injury or death of vulnerable road users under the careless driving law. Careless driving is a Class A or B traffic violation — depending on whether it involves a crash — and requires a hearing when it involves the serious physical injury or death of a vulnerable road user. The penalties are significant when that careless driving results in a serious physical injury or death of a vulnerable road user: a fine that’s six times the standard maximum fine for a Class A traffic violation and a one-year suspension of driving privileges.
In addition, Oregon addresses vehicular assault against bicyclists and pedestrians as a separate Class A misdemeanor. This vehicular assault law can complement or provide an alternative to a citation for a violation of Oregon’s safe passing law, giving law enforcement options to account for different driver behavior or enforcement concerns related to the safe passing law.
Learn more about how the vulnerable road user law was developed and enacted here. Since the initial law, advocates, like the Bicycle Transportation Alliance, have worked for improvements, including an amendment in 2011.
What are they?
Generally, distracted driving can be caused by any activity that can divert a person’s attention away from the primary task of driving. Although distracted driving can take many forms, distracted driving laws are primarily a response to the spread of mobile communications devices into our vehicles. The most common distracted driving laws include bans on text messaging, bans on cell-phone use, and the required use of a hands-free device while operating a mobile communications device in a vehicle. These laws can either be primary enforcement laws, which means a driver can be pulled over solely for violating the distracted driving law, or secondary enforcement laws, which means that the distracted driving law can only be enforced if another traffic offense also takes place.
Why should you care?
In 2010, 18 percent of injury crashes were reported as distraction-affected crashes. The prevalence and use of mobile communications devices has increased dramatically in the last decade and is likely to continue to increase. Safe bicycling and safe driving requires an awareness of your surroundings that is made more difficult by the use of mobile communications devices in vehicles. Distracted driving laws are important because they encourage people to stay focused on the task of driving and can be used in legal actions resulting from collisions or other incidents between road users.
If you would like to know more about the dangers of distracted driving, particularly distracted driving caused by the use of mobile communications devices, the National Highway Traffic Safety Administration (NHTSA) and the US Department of Transportation (DOT) have a great site with links to research and reports on the issue. For some information about how MAP-21 provides incentive grants for distracted driving programs please see this report put together by the Advocates for Highway and Auto Safety or this press release from NHTSA.
Who has them?
Thirty-nine states ban text messaging for all drivers, and 33 states ban all cell phone use by novice drivers. Ten states prohibit all drivers from using handheld cell phones while driving. To learn more about the various laws targeting distracted driving please see the excellent information put together by the Governors Highway Safety Association.
Click on image for full chart. Credit: GHSA.
Spotlight State – New Jersey
New Jersey has some of the strongest laws in the country to combat distracted driving. It is one of only two states — the other is Delaware — that has primary enforcement laws against all cell phone use by school bus and novice drivers, text messaging by all drivers, handheld use by all drivers, and includes a category for cell phone/electronic equipment distraction on police accident forms, according to the Governors Highway Safety Association. Every year since 2008 New Jersey drivers have been issued about 100,000 summons based upon illegal talking or texting while driving. Recent studies have shown that strong texting bans can reduce fatal single-occupancy, single-vehicle crashes but that vigilant enforcement is needed and concurrent handheld bans increase the effectiveness of texting bans.
Where did they come from?
Distracted driving is a relatively new issue and has been addressed in a variety of ways by states. In 2000, only three states had laws related to cell phones in cars. Oregon was the first state to make distracted driving a priority by incorporating it into their Strategic Highway Safety Plan in 1999. Since 2000, every state has considered legislation related to cell phone use in cars or distracted driving, and almost 200 bills were considered in 2009 alone
As of the last revision to the Uniform Vehicle Code (UVC) in 2000, there are no UVC sections relevant to distracted driving.
Bicyclists have been fighting for good roads and the right to use them since before the League of American Bicyclists was founded in 1880. Where to Ride laws strike at the very heart of advocacy: Bicyclists’ right to the road. When safety requires a bicyclist to take the lane, it is important that the law allows a bicyclist to do so.
In this edition of Bike Law University, we take a look at Where to Ride laws and how they have shaped bicyclists safety.
What are they?
Where to Ride laws tell bicycles, or vehicles generally, how they should position themselves on the road. These laws create and manage the expectations of road users regarding the behavior of others while traveling on the road. In most states, the law that applies to bicyclists regarding road position starts with a variation of requiring a position as far to the right as practicable.
When you talk about Where to Ride laws it is necessary to begin by defining the word practicable. In most states a bicyclist is required by law to ride as far to the right as practicable, sometimes referred to as AFRAP. The obvious and necessary question to a bicyclist seeking to comply with the law, motorists judging bicyclist behavior, and law enforcement officials tasked with enforcing the law is – what does practicable mean? So, inevitably a dictionary is consulted and we learn that it means “capable of being put into practice,” which is likely to mean one thing to an experienced road cyclist, one thing to a driver who is annoyed at a “law breaking” cyclist safely taking the lane, and a different thing to every law enforcement officer who by order or inclination enforces the law. What is practicable is often context sensitive based upon road and traffic conditions. The League generally recommends that cyclists ride in the right third of the lane with traffic.
Click here to see the full chart.
Cyclists and police at times disagree over where on the road cyclists can ride. Cyclists have successfully fought tickets issued under Where to Ride statutes based upon exceptions in the law, including narrow lanes and hazards. Local bicycling advocates and League Certified Instructors can be valuable resources if you are ever prosecuted under a Where to Ride law. If a disagreement occurs, it may be useful to consult bicycle safety education materials and roadway design manuals. In addition, sharrows, where marked, are usually meant to serve as an indication of where to ride and can be used as an insight into official ideas of what is “practicable.”
In the states that do not use the language “as far to the right as practicable” there seem to be three reasons for the difference:
- New York defines its standard in terms of a cyclist’s impact on traffic
- Colorado, Missouri, Oklahoma, and Washington essentially substitute “as safe” for “as practicable”
- Arkansas and Massachusetts do not provide unique lane positioning rules for cyclists or vehicles travelling at less than the prevailing speed of traffic
In most states there are a number of exceptions to the general requirement to ride as far to the right as practicable that allow a bicyclist to take the lane in certain situations. The seven most common exceptions are listed below:
- Operating at or above the rate of speed of normal traffic flow on the roadway
- Turning to the left
- Avoiding hazards or hazardous roadway conditions (usually this is accompanied by a non-exhaustive list of hazards, often including parked cars to address the door zone)
- Operating in a lane that is not sufficiently wide for a bicycle and vehicle to operate side by side
- Operating on a one-way street, in which case a bicyclist may ride near to the left side of the roadway
- Intending to proceed straight when the right-most lane is a right turn only lane (to avoid a right hook conflict)
These exceptions, along with the indefinite nature of what is “practicable”, can give cyclists substantial autonomy in deciding where they feel comfortable riding on a roadway given the conditions that exist on that roadway. Although these rules are usually phrased as exceptions, they can also be seen as clarifications regarding when it is practicable to ride to the right.
It is important that cyclists are equipped with the legal rights to determine where they want to ride. When conflicts over shared road space arise between bicyclists and other road users or law enforcement it is important that safety is the primary concern rather than ideas about the hierarchy of road users and good Where to Ride laws allow the cyclist to decide what is safe.
Spotlight State – Colorado
Rather than using the “as far to the right as practicable” language of most states, Colorado says that a bicyclists shall ride “far enough to the right as judged safe by the bicyclist to facilitate the movement of … overtaking vehicles.” Unlike the confusing term practicable, this language explicitly balances a cyclist’s need for safety with demands for efficient traffic flow. Cyclists are given further control over where they choose to ride because they are not expected or required to ride without a reasonable safety margin to the edge of the roadway. In addition, the law provides for all seven of the common exceptions to the “as far to the right as practicable” rule.
The language of Colorado’s law is the result of Bicycle Colorado’s efforts after one police officer, acting upon his own unique interpretation of practicable, issued numerous tickets for failure to ride “as far to the right as practicable.” Bicycle Colorado attempted to educate the police officer regarding cycling safety and the reasons that his interpretation of practicable was detrimental to cyclist safety, but no common understanding was reached. By changing the law Bicycle Colorado was able to change this difficult to understand law to language that actually says something, and embodies the education message that would otherwise have to be done on a personal basis. Now cyclists, drivers, and law enforcement officers can simply look at the law, rather than having to resort to a dictionary and their own experiences to determine where a bicyclist can and should ride.
Why should you care?
Where to Ride laws are an important part of bicyclists’ right to the road because they regulate bicyclists’ use of the road. When safety requires a bicyclist to take the lane it is important that the law allows a bicyclist to do so. There seem to be two primary justifications for Where to Ride laws: 1) concern for bicyclist safety, and 2) concern that bicycles interfere with traffic flow. Let’s take a look at how these laws address these two justifications:
1) Bicyclist safety: Where to Rde laws are essential so that bicyclists are told to ride with traffic because they gain significant safety benefits when they do so. Bicyclists riding against traffic are more than 3 times more likely to be in an accident. To be safe a bicyclist needs room to maneuver in an emergency and the confidence to position him or herself appropriately given road and traffic conditions. The requirement to ride to the right does a great job of addressing that people ride with traffic. The seven common exceptions to this requirement provide a basis for bicyclists to position themselves so that they are visible to motor vehicle traffic, act like other vehicles, or otherwise protect themselves from turning vehicles and other hazards.
2) Bicyclists and traffic flow: Where to Ride laws address traffic flow by requiring bicycles to be operated on the far right side of the road, allowing motor vehicle traffic room to pass when a road is wide enough. Two of the common exceptions to the ride to the right requirement have a direct relationship to traffic flow.
- When a bicycle is operated at or above the speed of normal traffic flow there is no traffic flow or safety reason for a bicycle to be operated in a way other than a motor vehicle, and so in most states a bicycle is not required to ride to the far right in those circumstances.
- When a lane is not sufficiently wide for a bicycle and a vehicle to operate side by side there is a significant potential that riding to the far right may invite unsafe passing, and so in most states a bicycle is not required to ride to the far right in those circumstances. This exception correctly prioritizes bicyclist safety over fast traffic flow. It also appears to be one of the most commonly litigated exceptions as bicyclists taking the lane according to this exception are more likely to be in conflict with motor vehicle traffic flow for an extended period of time.
Good Where to Ride laws manage the expectations of drivers and let drivers know that a bicyclist has the right to take the lane according to their personal judgment of their safety and road conditions. Bad Where to Ride laws prioritize motor vehicle traffic flow and limit the ability of a bicyclist to make judgments about their own personal safety. Additionally, bad laws may subject a bicyclist to prosecution and a fine for attempting to ride safely. It is important that our laws prioritize safety for all road users.
Who has them?
Forty three states, and Washington, D.C., have a law that requires vehicles, or bicycles, to operate on the right side of the road and as near to the right side of the roadway as practicable if travelling at less than the prevailing speed of traffic.
As previously discussed there are seven common exceptions to this requirement, and they occur in different frequencies. The average for all states is to have slightly more than four exceptions. The most common number of exceptions for a state to have is six.
Bicycles on sidewalks have long been debated: Is it legal? Is it safer? Shouldn’t children be able to ride there? In this edition of Bike Law University, we take a look at sidewalk riding, which is a perfect microcosm of the complicated relationship between bicycles and traffic laws in most states.
What are they?
Sidewalk riding laws define the rights and duties of a bicyclist when riding on a sidewalk. Whether a bicycle can be legally ridden on a sidewalk highlights the complicated and hybrid nature of the bicycle under current traffic laws in most states. A bicycle is at once a vehicle, given all the rights and duties of a vehicle; its own entity, subject to specifically tailored alternative rules; and in some cases treated as a pedestrian, with all accompanying rights and duties. In some instances, laws related to sidewalk riding can also highlight a division between adult and child bicycling.
When states do not explicitly allow bicycles to be ridden on sidewalks, court interpretations of statutes may still allow bicycles to be ridden on sidewalks. In most, if not all, states, either statutes or court decisions say that whatever laws govern bicycle behavior on sidewalks will also apply to crosswalks. (Please contact me if you would like any case citations.)
In addition to these issues caused by the hybrid nature of bicycles, many states leave their traffic laws open to change by localities, either in limited circumstances or through a general grant of power. Whether a bicycle may be ridden on a sidewalk is often explicitly allowed to be a local decision and may also be limited in central business districts, where pedestrian traffic is likely to be heavier.
Why should you care?
The League recommends that bicyclists ride on the road. Riding on the sidewalk is a significant cause of bicyclist-motorist crashes and creates unnecessary conflicts with pedestrians. There are many reasons that bicyclists belong in the road rather than upon the sidewalk, including obstructions, unpredictable pedestrian movements, limited visibility, and the limited design speed of sidewalks. However, there may be appropriate times to ride on a sidewalk or crosswalk, such as when crossing an unsafe high speed roadway or when the skill or ability level of the rider is not suited for the adjacent roadway, as can be the case with children.
When a bicyclist chooses to ride on sidewalks or crosswalks, sidewalk riding laws can clarify expectations for pedestrians, motorists, and bicyclists regarding how each mode will interact. When states fail to make the rights and duties of users of different modes clear in these hybrid situations they make it more difficult for public education efforts to be authoritative, create confusion regarding who is “right,” and may unintentionally limit the ability of crash victims to recover. It is possible that this lack of clarity may be a sign that these hybrid situations are thought more suitable for court decision-making rather than legislative decision-making because of the individualized and context-sensitive nature of these mode interactions. Even in states where there are “good” laws that make the rules for each road or sidewalk user clear the best answer to these context-sensitive situations is to create a better context. Dedicated bicycle infrastructure is a demonstrated way to reduce sidewalk riding by bicyclists and an appropriate response.
See the full chart of laws and regulations by clicking here.
Who has them?
- 8 states prohibit bicycles on sidewalks because bicycles are vehicles, and vehicles are prohibited on sidewalks.
- In 10 states it is unclear whether bicycles are prohibited from sidewalks because they are not defined as vehicles, but a bicyclist has all of the rights and all of the duties applicable to the driver of any vehicle except as to those provisions which by their nature can have no application, and vehicles are prohibited on sidewalks.
- In 8 states no law was found regulating the use of sidewalks by either bicycles or vehicles.
- 21 states require a bicyclist to yield to a pedestrian while riding on a sidewalk.
- 18 states require a bicyclist to give an audible signal before passing a pedestrian while riding on a sidewalk.
- 4 states limit the speed of at which a bicycle can be ridden on a sidewalk.
- 13 states say that a bicyclist riding on a sidewalk has all the rights and duties of a pedestrian in the same circumstances. In all but one of these states there is a variation of the requirement that pedestrians cannot suddenly leave a curb into the path of a vehicle that is so close as to constitute an immediate hazard.
Spotlight State – Utah
Utah clearly navigates the hybrid nature of bicycling on sidewalks using statutes that address a bicycle as a vehicle, as a quasi-pedestrian, and as its own entity. In Utah, bicycles are vehicles and vehicles are prohibited from operating on sidewalks. However, bicycles are explicitly allowed to ride on sidewalks in the same statute that prohibits vehicles from doing so. In a separate statute the rights and duties of a bicyclist on a sidewalk are given. In general, bicyclists have all the rights and duties applicable to pedestrians on a sidewalk, path, trail or crosswalk, but there are several exceptions. These exceptions generally do one of two things:
1) Give priority to pedestrians
- A bicyclist must yield to a pedestrian; and
- A bicyclist must give an audible signal before passing a pedestrian.
2) Establish rules specific to bicycles on a sidewalk
- Bicycles may be prohibited from sidewalk, path, trails, and crosswalks by sign or ordinance;
- Bicycles must not be operated in a negligent manner so as to collide with pedestrians, other bicyclists, or other vehicles or devices propelled by human power; and
- Bicycles must be operated at a reasonable and prudent speed.
Upon the shared space of a sidewalk, path, trail, or crosswalk a bicyclist is most likely to be the largest, fastest moving user of that shared space, with the most potential to injure another user of that space. The exceptions that are found in Utah’s law reflect the idea that a more dangerous user of a shared space should be subject to rules that account for that danger. Several states make a distinction between bicycles and motorized bicycles to further account for the real or perceived danger of heavier, faster, moving users on a sidewalk and prohibit motorized bicycles. Whether these additional rules are necessary or desirable can be debated, but they provide some parallels for discussions of appropriate rules for shared roadways.
Ohio also has a statute provision worth mentioning: In the Buckeye State, bicycles can be prohibited from sidewalks by sign or ordinance, but cannot be required to ride upon the sidewalk by sign or ordinance. This ensures that bicyclists can always use the road, and is an at this time unique provision to bolster the vehicle portion of the hybrid rights and duties of bicycles.
Mandatory Use laws require bicyclists to use facilities that are provided or designated for their use.
These laws generally require a bicyclist to use a separated path (often referred to as a sidepath), a marked bike lane, or a roadway shoulder, rather than the parallel or adjacent travel lanes provided for motor vehicles. Some, but not all, of these laws provide a standard for the facility, allowing a bicyclist some flexibility to choose to use the roadway rather than the facility if that standard is not met.
In the 1970s, mandatory use laws of some sort existed in 38 states. Since that time many cycling advocates and state legislatures have worked together to repeal many of those laws. Today there are 17 states with some type of mandatory use law and only 11 of those states have laws that apply in most circumstances.
WHY SHOULD YOU CARE?
The League believes that cyclists have a fundamental right to the road. For a great discussion of the emergence of cyclists’ right to the road and its current foundation I recommend reading the first chapter of Bob Mionske’s Bicycling and the Law. The League does not support mandatory use laws, and believes that cyclists should not be required to use dedicated bicycle facilities.
The League believes that cyclists have a fundamental right to the road.
Laws that mandate that a bicyclist use a particular facility undermine the ability of a bicyclist to protect him or herself when those facilities are not well planned, designed, and/or maintained. They may also promote unhealthy relationships between bicyclists, other road users, and law enforcement by setting authoritative rules where education and judgment might be more effective. There are numerous operational reasons why a dedicated bike facility might be rendered unsafe or impractical -- such as an accumulation of debris, illegally parked vehicles, the need to make a left turn -- and in such cases cyclists need to be able to ride in the adjacent or parellel travel lanes without fear of prosecution. In addition, it is difficult to design a bike lane or path that will appropriately accommodate the great diversity of bicyclists from children to professional racers and mandatory use laws fail to recognize the different needs of the many members of the cycling community.
The best way for communities to encourage bike lane and path use is to build them and build them well. There is tremendousdemand and use of bike lanes and paths regardless of mandates. Building facilities that at least meet the standards developed by the National Association of City Transportation Officials (NACTO) or American Association of State Highway Transportation Officials (AASHTO) is a great way to ensure that those facilities are well built and will provide cyclists with safety and comfort. When safe, comfortable, and accessible facilities are built then most cyclists will choose to use them.
Although great progress has been made since the 1970s, mandatory use laws are still a problem, showing up in federal and statecontexts. The League believes that these laws do nothing to benefit bicyclists and should be fought at every level.
WHO HAS THEM?
Seventeen states have some law that requires, or enables localities to require, the use of a bike lane, bike path, or shoulder when that facility is present. Of those 17 states, several laws have limited applicability or effect:
- In Georgia and Utah the laws merely enable localities to enact mandatory use laws.
- In Connecticut and Kentucky the laws only require the mandatory use of a separated facility when such a facility is marked on a highway or parkway (i.e. limited access roadways).
- In Kansas the law only applies when a sidepath is dedicated to bike use only.
- In Oklahoma the law only requires the use of a bike path within parks.
After accounting for these six states that have mandatory use laws of limited applicability there are only 11 states with mandatory use laws that generally apply.
- States generally require the use of a sidepath – Alabama, Nebraska, Oregon, West Virginia
- 7 States generally require the use of a bike lane – California, Florida, Hawaii, Maryland, New York, Oregon, South Carolina
- 1 State generally requires the use of a shoulder – Alaska
Several of these states provide exceptions to their mandatory use laws to address the many situations in which strict application of the law would be unsafe or impractical. There are five common exceptions and they occur in different frequencies. The average for all states is to have slightly more than 1 exception. The most common number of exceptions for a state to have is zero.
Number of States with Exception
6 out of 11
Turning to the left
5 out of 11
Avoiding hazards or hazardous roadway conditions
6 out of 11
Operating at or above the rate of speed of normal traffic flow on the roadway
3 out of 11
Avoiding right hooks
3 out of 11
5 out of 11
SPOTLIGHT STATE – OREGON
If you are a fan of bicycle lanes and paths, then you probably like Oregon. Since the 1971 “Bike Bill”, bicycle facilities have been required whenever a road, street or highway is built or rebuilt. Unfortunately, Oregon requires the use of a bicycle lane or path when one is available. While Oregon would be even better for bicycling if it had no mandatory use law, there are some notable features of Oregon’s mandatory use law which are an improvement upon more common mandatory use laws.
Oregon’s law has:
- A relatively strong standard for the quality of bike facilities: Oregon’s mandatory use law requires that a bicycle path or lane be “suitable for safe bicycle use at reasonable rates of speed.” This standard does not adopt a specific national facility standard, like those created by the National Association of City Transportation Officials (NACTO) or American Association of State Highway Transportation Officials (AASHTO). Newer standards, especially those put forward by NACTO do a very good job of making it likely bike lanes built to that standard are “suitable for safe bicycle use at reasonable rates of speed.” While standards are a great start they may not encompass all factors that are important to local cycling communities and an open standard allows other evidence regarding the suitability of the path or lane to be considered.
- A public process for review of bike facilities: Oregon’s mandatory use law requires a “public hearing” regarding whether bicycle facilities meet the standard of “suitable for safe bicycle use at reasonable rates of speed” before a citizen can be cited for violation of the law. The extent of the public hearing is not defined. Portland has argued that the public hearing process regarding its Bicycle Master Plan is sufficient. Other localities have used City Council hearings.
- Several exceptions to the requirement of mandatory use: Oregon’s mandatory use law has five exceptions that mirror the exceptions seen in many far to the right laws. One exception worth particular note is that a bicyclist can move out of a bicycle lane or path if they are continuing straight through an intersection and the lane or path is to the right of a lane from which a motor vehicle must turn right, allowing cyclists to prevent right hook collisions.
It is also worth mentioning that in some states local jurisdictions may enact mandatory use laws. Iowa’s State Attorney General recently issued an opinion that local mandatory use laws conflict with Iowa’s state traffic law. If your state has not issued an opinion on the subject it may be worthwhile to look at that opinion and see if similar reasoning may apply in your state to preclude local mandatory use laws.
WHERE DID THEY COME FROM?
In 1944 §11-1205(c) was added to the Uniform Vehicle Code (UVC) and contained a mandatory sidepath provision. By 1979, only 12 states did not have a law similar to the mandatory sidepath provision set out in §11-1205(c). In 1979, §11-1205(c) was eliminated from the UVC and now only 17 states retain some version of a mandatory use law. As of the last revision to the UVC in 2000, there is no UVC sections equivalent to either a mandatory bike path or bike lane use law.
Photo: Transportation for America
Bicycling under the influence laws are very rare, often times leaving a gray area in the law.
In this edition of Bike Law University, we take a look at BUI laws and how they're implemented across the country. BUI laws provide specific penalties for bicyclists that are found to be riding while under the influence of drugs or alcohol. In most cases, BUI laws differ from Driving Under the Influence (DUI) laws by providing for less severe penalties and by not affecting a person’s driver’s license.
What are they?
When determining whether bicyclists are likely to be subject to DUI laws I used the following process:
1. Is there a bicycle-specific DUI-like statute? When there is a BUI statute that law will likely govern how intoxicated cyclists are treated, unless law enforcement officers choose to use more general public intoxication laws or the statute does not clearly prevent the DUI law from applying.
2. Is a bicycle a vehicle? Although bicycles are always given the rights and duties of vehicles, they are not always actually defined as vehicles. It is important to look at the vehicle definition in the state code in addition to the definition of bicycle.
3. Is the DUI statute written for all vehicles? Because the definition for vehicle is often very broad, DUI statutes are sometimes written for motor vehicles, rather than vehicles generally. In some states, the DUI law will alternatively specifically exclude vehicles moved solely by human power or provide for some other altered definition that more specifically targets motor vehicles.
4. Is there case law on the subject in this state? In my search of Google Scholar I found 18 states that have case law on the applicability of their DUI law to the bicyclists. The case law generally centers on two areas of interest: 1) whether bicyclists are by their nature exempt from all or part of the DUI law, and 2) whether the statutory language and intent precludes the application of the DUI law to bicyclists.
5. What is the most likely outcome of litigation on this subject if the law is not clear?In states that do not have case law on the subject, or where the only decisions are by lower level courts and are not definitive, I looked at the trends in interpretation by courts in other states. These trends of interpretation will be discussed below.
Why should you care?
There are several studies that support the idea that BUI is a safety problem, and specifically that “[a]lcohol-intoxicated riders are considerably more likely than sober cyclists to be severely injured or killed.” According to Peter Jacobsen and Harry Rutter in City Cycling, “[i]n one study in Portland, Oregon, although only 15 percent of killed and hospitalized adult cyclists had elevated blood alcohol levels, half of the adult cyclists with fatal injuries were intoxicated (Frank et al. 1995).” In another study: “Of 200 injured cyclists reviewed during a study at a regional trauma center in Austin, Texas, 40 either had measurably elevated blood alcohol levels or themselves reported having consumed alcohol.
The intoxicated cyclists were much more likely to have been injured at night or in the rain and to have been admitted to the hospital. Only 1 of the 40 (2.5%) alcohol-consuming cyclists had worn a helmet, compared to 44 percent of the others. Both cyclists who incurred severe brain injuries were intoxicated, and the average hospital care cost of the alcohol-consuming cyclists was twice that of their sober counterparts. (Crocker et al. 2010).” Beyond the dangers caused by alcohol intoxication, it seems likely that intoxication is associated with behaviors that otherwise increase the risks of injury while bicycling such as riding without a helmet, riding at night, and riding without proper reflective gear or lights.
That intoxicated cyclists are overrepresented amongst cycling fatalities should not be confused with the idea that BUI is a widespread problem within the bicycling community or that its reduction will dramatically improve roadway safety. Although, the mixing of bicycling culture and beer culture can be seen in many examples, from breweries organizing bike-themed festivals to bicycle concepts built around transporting beer, and, in some cases, bicycles are the transportation choice of persons who have lost their driver’s licenses due to DUI, there is little evidence to suggest that BUI is common. The evidence that does exist suggests that BUI is less common than other forms of intoxicated transportation.
In City Cycling, a study of over 1,000 traffic fatalities in England and Wales found that “of all road users killed … cyclists were the least likely to have consumed alcohol or drugs. Of the cyclists tested, 33 percent showed the presence of alcohol and/or drugs, compared to 55 percent of drivers, 52 percent of car passengers, 48 percent of motorcyclists, and 63 percent of pedestrians (Elliot, Woolacott, and Braithwaite 2009).” In addition, “More cyclists fatalities are due to intoxicated motorists than intoxicated cyclists (Kim et al. 2007).”
Doing a better job of recognizing and dealing with BUI can be part of a road safety agenda, but our current legal system does not seem to be equipped to deal with the issue. To be taken seriously as road users, with the same rights and responsibilities as the operators of motor vehicles, means that cyclists should avoid BUI. However, the potential harm of BUI is not readily comparable to the well documented dangers of DUI. The normalization of bicycles as a legitimate transportation mode does not mean that bicyclists should be fit into the pre-existing framework for motor vehicles, but that they should be treated with the same seriousness. BUI and DUI are separate public policy issues that deserve separate public policy responses.
Who has them?
Four states have BUI statutes that provide specific penalties for bicyclists found riding under the influence. In five states a statute exempts bicyclists from all or part of the state DUI statute. In the remaining 41 states the application of the state’s DUI laws may be unclear, unless controlling case law exists.In 24 other states, there is some reason to believe, based upon the language of the DUI statute, definition of a vehicle, or the interaction of the two, that the DUI law does not apply to bicyclists. In these states a bicyclist may still get in serious trouble for BUI, but it is likely that a bicyclist will be cited with another statute, such as disorderly conduct or drunk in public. In the remaining 21 states, and the District of Columbia, it is likely that bicyclists can be charged with DUI based upon the reasoning laid out previously in this post.
Where did they come from?
Driving under the influence is addressed in the Uniform Vehicle Code (UVC) in §11-902. There is no Bicycling under the influence equivalent, however applying the reasoning discussed previously to the UVC (esp. §§1-215, 1-109, 11-1202, and 11-902), bicyclists would likely be subject to the UVC’s DUI provisions.
Spotlight State: Washington
In Washington, a bicycle is defined as a vehicle and the DUI law applies to all vehicles. In most states with similar language courts have found the DUI law to apply to bicycles. However, in 1995, the Division 2 Court of Appeals of Washington in Montesano v. Wells, 902 P.2d 1266 (1995), held that Washington State’s DUI law was meant to apply only to motor vehicles. Since this decision Washington State passed new legislation on the subject of bicycling under the influence (BUI). This new legislation deals with the safety issues that BUI can cause for cyclists, but minimizes the punishment for BUI.
"(1) A law enforcement officer may offer to transport a bicycle rider who appears to be under the influence of alcohol or any drug and who is walking or moving along or within the right-of-way of a public roadway, unless the bicycle rider is to be taken into protective custody under RCW 70.96A.120. The law enforcement officer offering to transport an intoxicated bicycle rider under this section shall:
(a) Transport the intoxicated bicycle rider to a safe place; or
(b) Release the intoxicated bicycle rider to a competent person.
(2) The law enforcement officer shall not provide the assistance offered if the bicycle rider refuses to accept it. No suit or action may be commenced or prosecuted against the law enforcement officer, law enforcement agency, the state of Washington, or any political subdivision of the state for any act resulting from the refusal of the bicycle rider to accept this assistance.
(3) The law enforcement officer may impound the bicycle operated by an intoxicated bicycle rider if the officer determines that impoundment is necessary to reduce a threat to public safety, and there are no reasonable alternatives to impoundment. The bicyclist will be given a written notice of when and where the impounded bicycle may be reclaimed. The bicycle may be reclaimed by the bicycle rider when the bicycle rider no longer appears to be intoxicated, or by an individual who can establish ownership of the bicycle. The bicycle must be returned without payment of a fee. If the bicycle is not reclaimed within thirty days, it will be subject to sale or disposal consistent with agency procedures.”
This law does not give cyclists a free pass, or turn the police into their taxi service, but rather provides for a way to get intoxicated cyclists and pedestrians away from streets where they may be in danger without invoking harsh penalties meant for intoxicated drivers or more general laws related to the disruption that may be caused by an intoxicated person in public. What the law does is recognize that intoxicated cyclists, and pedestrians, are likely to primarily endanger themselves and that there is a public interest in protecting them.
Case Law Trends
Where bicycles are vehicles, and the DUI statute is written for all vehicles, courts overwhelmingly find that the DUI statute applies to bicycles.
- This has been found in the District of Columbia [Everton v. DC, 993 A.2d 595 at 596-7 (2010)], Florida [State v. Howard, 510 So.2d 612 (1987)], North Dakota [Lincoln v. Johnston, 2012 ND 139 (2012)], Ohio [Ohio v. Hilderbrand, 40 Ohio App. 3d 42 (1987)], Oregon [State v. Woodruff, 726 P.2d 396 (1986)], Pennsylvania [Commonwealth v. Sheriff, 7 Pa. D. & C. 4th 201 (1990); Commonwealth v. Brown, 423 Pa. Superior Ct. 264 (1993)], and South Dakota [State v. Bordeaux, 710 N.W. 2d 169 (2006), the law has since been amended]. In each case, although the number and complexity of the statutes involve varies, the plain language of the statutes meant that bicycles were vehicles and the DUI law applied to all vehicles.
- However, in Washington [Montesano v. Wells, 902 P.2d 1266 (1995)], the court found that although “a literal reading … appears to allow the state to charge bicyclists with driving under the influence” the legislature did not intend such application. The court reached this finding because the definition of vehicle was only recently amended to include bicycles, and the DUI statute was not amended to address this new definition. The court found it particularly persuasive that the DUI statute used vehicle and motor vehicle interchangeably in a way that would have made bicyclists subject to DUI but not subject to a lesser included offense, and that such application would be absurd. Additionally, public policy considerations that informed the DUI law, the extreme danger inherent in motor vehicles, did not weigh in favor of applying the DUI law to bicycles.
2. Where bicycles are vehicles, and the DUI statute is written for anything other than all vehicles, it is less clear that a court will apply the DUI statute to bicycles.
- In Louisiana [State v. Carr, 761 So.2d 1271 (2000)], the Louisiana Supreme Court found that there was an ambiguity in the larger statute of which their DUI was part that suggested two reasonable interpretations where “other means of conveyance” could mean motorized or non-motorized conveyances. Due to this ambiguity, the principle of lenity – that ambiguous criminal statutes should be strictly construed in favor of the defendant to ensure that they provide fair warning of what is criminal, led the court to conclude that a bicycle was not an “other means of conveyance.
3. Where bicycles are not vehicles, courts are unlikely to find that the DUI statute applies to bicycles
- This has been the case in California [Clingenpeel v. Municipal Court, 108 Cal.App.3d 394 (1980)], Illinois [People v. Schaefer, 654 N.E.2d 267 (1995)], Kansas [City of Wichita v. Hackett, 275 Kan. 848 (2003)], and Michigan [Hullett v. Smiedendorf, 52 F. Supp. 2d 817 (1999)].
i. These cases generally follow a similar pattern:
- The State argues that their statute based on UVC 11-1202 [“Every person propelling a vehicle by human power or riding a bicycle shall have all of the rights and all of the duties applicable to the driver of any other vehicle under chapters 10 [accidents and accident reporting] and 11 [rules of the road], except as to special regulations in this article and except as to those provisions which by their nature can have no application.”], persons on bicycles are subject to the DUI law because they are subject to all of the duties applicable to the driver of a vehicle.
- The Court finds ambiguity in the statute based on UVC 11-1202 because it would be reasonable to interpret that either: 1. Bicycles are not vehicles – and the plain language of the DUI laws only applies to vehicles – therefore the state’s DUI laws by their nature do not apply to bicycles. 2. The state’s version of UVC 11-1202 subjects bicyclists to the same duties applicable to drivers of vehicles – and therefore bicyclists should be subject to the DUI laws.
- The Court finds that the ambiguity makes it so that the laws do not inform cyclists that they are liable to punishment for driving a bicycle while under the influence in terms sufficiently clear that men of common intelligence would not differ as to its application, and therefore the laws do not subject bicyclists to criminal sanctions.
- The Court may supplement its textual reasoning with public policy arguments based upon the smaller threat to the public due to intoxicated bicyclists, as when the Court in Clingenpeel said “[p]eople of common intelligence would not assume that [DUI punishment] was intended to be made applicable to drunk driving of bicycles, to which it would appear to be an overkill” because “the combination of bicycle and cyclist does not possess the "great force and speed nor is it capable of producing the carnage and slaughter reaching the astounding figures only heard of on the battlefield (citations omitted)."
4. Where all or part of a DUI statute uses “motor vehicle”, courts are unlikely to find that section applies to bicycles
- This has been the case in DUI cases in New Jersey [State v. Machuzak, 227 N.J. Super. 279 (1988); State v. Johnson, 203 N.J. Super. 436 (1985)] and by analogy in New York [People v. Szymanski, 63 Misc.2d 40 (1970)]. In addition, in Oregon [State v. Woodruff, 726 P.2d 396 (1986)] and Pennsylvania [Commonwealth v. Sheriff, 7 Pa. D. & C. 4th 201 (1990)] found that implied consent laws did not apply because those laws used “motor vehicle” rather than “vehicle.” In these cases, the courts generally find that the plain language of the statutes mean that they do not apply to bicyclists or other persons who do not fall within the definition of “motor vehicle.” Because the legislature chose to categorize vehicles differently (motor vehicles vs. other vehicles), the courts commonly say that it is the responsibility of the legislature to resolve the ambiguity of the DUI laws application to bicyclists. In New York, the Szymanski case dealt with a horse-drawn carriage but the court noted that identical language dealt with persons riding bicycles and the same logic applied.
- However, there is a split amongst New Jersey trial courts and State v. Tehan, 190 N.J. Super. 348 (1982) found that the state’s DUI law could be applied to bicyclists, but the bicyclist could not have their license suspended even though the DUI law did apply. This decision is criticized in the later cases from New Jersey as giving greater effect to the statute than the statute’s language requires and ignoring the DUI law’s more specific language when applying the language that gives a person on a bicycle the duties of the driver of a vehicle. Since all three cases are the decisions of trial courts, none of the cases are determinative of how the DUI law will be applied in New Jersey.
5. Courts do not generally find that DUI laws are the type of duty that by its nature cannot apply to a person riding a bicycle.
- While there are instances of bicyclists being held exempt from rules of the road due to the different natures of bicycles and other vehicles (according to a New York State Appellate Court, Secor v. Kohl, 67 A.D.2d 358 at 362-3 (1979), bicyclists are exempt from signaling continuously for the same number of feet as a car, because that requirement was based upon the speed at which a car travels), courts generally rely upon the plain language of the statutes or overall the intent of the legislative scheme rather than looking at the nature of bicycles and other vehicles and the public policy reasons for prohibiting the intoxicated operation of different vehicle types. An exception is the New Jersey case, Tehan, where the court found that because bicycling is an unlicensed activity the license forfeiture provisions of the DUI law could not require that defendant forfeit his right to operate his bicycle on the roads.
The discussion above hopefully helps you to understand whether or not your state has confronted the issue and whether it has done so in an appropriate manner. As bicycling becomes more popular instances of BUI are likely to increase and there is likely to be renewed interest in enforcing DUI laws against bicyclists. The bicycling community should be ready to talk about the real safety issues caused by BUI, but it is entirely appropriate to consider, as many courts already have, the vast difference in the threat to public safety caused by intoxicated bicyclist vs. intoxicated motor vehicle drivers. Our understanding of the danger that it poses, both to bicyclists and to the public generally, is limited because of the general lack of bicycle accident data but it is hard to believe that it approaches the severity of DUI. As others have argued, I think that BUI should be recognized as a distinct public policy issue that deserves its own solution, rather than shoehorned into our DUI laws.