Legal Defense of Cyclists

by Fred Oswald, LCI #947

Revised 30 May 2004

Cyclists must be ready to defend themselves against harassment by police and government officials who are ignorant of proper bicycle operation. It is not just Boy Scouts who must be prepared. There are two major problems.

Police, judges and others do not understand proper cycling methods but instead believe the superstition that it is "dangerous" to ride on the road.
Misguided laws (as discussed in the sections below) that treat bicycles as toys and cyclists as incompetent children. Many of these laws mandate unsafe practices.

This article is intended to provide help for cyclists wrongly prosecuted for what should be legal operation of a bicycle. We do not condone rogue cyclists. A cycling newsgroup recently had a story about a cyclist who was cited after being hit by a car at an intersection. Later in the account, he admitted he had run a stop sign. Motorists usually yielded to him at this intersection so he came to believe he had the "right" to run the stop sign. My advice for this case is "pay the fine and learn your lesson."

Be Prepared:

If you ever have to defend yourself, you must know what you are doing and you must show that you know what you are doing. This means you must really know proper Vehicular Cycling technique. Study John Forester's books Effective Cycling and Bicycle Transportation and John Allen's booklet Street Smarts. (See References below.)Always follow the rules of the road -- ride on the right, obey traffic signals, use lights at night, etc. Carry a summary of state traffic laws with you. If you are from Ohio, you can download, print and laminate in plastic the pdf file Summary of Ohio Traffic Laws for Bicycles. Better yet, carry (in a plastic bag) a copy of Ohio Bicycling Street Smarts. You might find one at your city hall or at a motor vehicle license bureau, or call ODOT at 614-644-7095. Because the booklet was issued by the Ohio Dept. of Public Safety, the methods it describes provide official approval for "vehicular cycling". Learn about bicycle traffic laws for the communities where you regularly ride. Local ordinances are usually available in the public library, typically in a notebook labeled "Codified Ordinances".

If Stopped by Police:

Try to politely explain that you are operating your bike as the competent driver of a vehicle according to the uniform traffic laws of your state. Explain that you have studied cycling, that you know what you are doing, and that other methods such as riding on sidewalks are dangerous. (If you have an Effective Cycling or BikeEd course certificate, show it.) In other words, try to talk your way out of a ticket. Keep your cool and be polite.

Consider carrying a copy of the ACLU Bust Card. The ACLU describes the card as follows: To fight police abuse effectively you need to know your rights. There are some things you should do, some things you must do and some things you cannot do. If you are in the middle of a police encounter, you need a handy and quick reference to remind you what your rights and obligations are.

If you get a "warning" beware. You may get a ticket the next time. Recall the Selz case in the companion article Bicycle "Right to the Road" Cases, where the defendant had been warned about making a "vehicular style" left turn from a left turn lane a month before he was cited for "impeding traffic". Take notes of the time, place, officer's name, car number, etc. Write a polite but firm letter to the Police Chief (with copy to the mayor) explaining that either the officer gave unsafe and dangerous instructions and needs training (#1 above) or write to the city government that the ordinance is wrong, dangerous and must be changed (#2). The government may try to ignore you and hope you will go away. Changes like this take time and polite persistence.

If You Get a Ticket:

Get evidence. Carefully note what the officer tells you, especially if you were told to ride on the sidewalk or in the "gutter". Ask the officer what he/she thinks you should do. (You need "tools" to discredit police testimony in court.) If there are witnesses, get names or car license numbers. As soon as feasible, get photos of the scene, measure the width of the traffic lane, document any problems (potholes or debris) with the road, etc. Be sure to get the officer's name and badge number. You might consider a political solution. First talk to local officials to see whether they are interested in a just solution. If not, then try pressure by generating negative publicity for the community.

Next step is bone up on the law, get a good attorney and expert witness and plan your defense strategy. Be wary of an attorney that does not understand cycling issues. See John Forester's web page on courtroom strategy. Read about other cases, successful or otherwise. If the case involves police judgment, demand records on the officer's training, especially bike training if any. If the police claim to have had training, who was the instructor and what are the instructor's qualifications? You may want to contact the prosecutor. Perhaps a careful explanation coupled with the impression that you are well prepared to fight will convince the prosecutor to drop charges. Gather sources consistent with your cycling methods. "Official" sources are especially useful. See what supporting materials you can get from your state's DOT. Maybe your state's "bicycle coordinator" will help. (If not, what good is the coordinator?)

Strategy to Fight Improper Interpretation of Law

At trial, you need to produce evidence that the officer was acting on ignorance and superstition. Then you must show why vehicular cycling is the safest way to operate a bicycle. Get a BikeEd instructor as an expert witness. The expert can explain why the officer's instructions (to ride on the sidewalk, for example) are dangerous. This should be backed up with charts showing relevant accident statistics, such as the charts in Introduction to BikeEd (pdf file). These are based on the book Bicycle Transportation by John Forester. The expert can also explain that the accident rate for experienced cyclists is 75-80 percent lower than the average bicycle accident rate and that you (the defendant) operate according with the best practices of experienced cyclists.

The "Far Right Rule"

The Uniform Vehicle Code includes a rule that says (§11-1205(a), Position on roadway) "Any person operating a bicycle or a moped upon 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 except under any of the following situations: ..." The exceptions cover passing; left turns; hazards at edge of road; a "substandard width lane"; and a right turn lane. Some states (including my own Ohio) do not include these exceptions. Still the UVC makes a good example. If you plan to argue against enforcement of this rule, you must document that riding near the curb is improper and dangerous. Get photographs showing the condition of the road or illustrating that the lane is too narrow to share with motor vehicles. See example photos (jpeg file) showing a road too narrow for lane-sharing. (A similar illustration is included in the "Introduction to BikeEd" file mentioned above.) If you need a higher resolution pdf file, contact the author. See also accounts of actual court cases in Bicycle "Right to the Road" Cases.

Even if you not are from Pennsylvania, the Pennsylvania Bicycle Driver's Manual is extremely helpful. Likewise, Ohio Bicycling Street Smarts, issued by the Ohio Dept. of Public Safety at the suggestion of the Ohio Bicycle Federation, is another excellent resource. Supporting information from your own state is best. The Ohio "Digest of Motor Vehicle Laws" has a bicycle section that says (11/02 edition, p. 63) "Cyclists can travel in the middle of the lane if they are proceeding at the same speed as the rest of the traffic, or if the lane is too narrow to share safely with a motor vehicle." Finally, the ASHTO Guide for the Development of Bicycle Facilities defines a lane less than 12 feet to be too narrow for sharing between bicycles and motor vehicles. The same guide also warns against sidewalk bike paths. These official sources are likely to be more credible to a judge than even the most expert cyclist.

If there is any hint at trial that you were "in the middle of the lane", you must thoroughly explain the danger of riding too close to the curb. Be prepared! Otherwise, the judge will believe that you were riding dangerously and "blocking traffic". If safety relates in any way to your case, you must insist on being allowed to educate the court about the real bike safety issues.

To Fight Prosecution Under a Bad Law

It is harder to prevail against "bad laws". You can start with a polite letter to the mayor and prosecutor explaining why the laws are dangerous and that the city may be liable for injuries they cause. One tactic is to show the bad laws conflict with state traffic laws. A problem is the local courts may insist on local "home rule" rights. (This is a problem in my own Ohio). A judge may tell you "I see bikes on the sidewalk [path] all the time. That's good enough for you!" This kind of arrogant ignorance coupled with authority is difficult to fight but it may form the basis for an appeal.

You may lose in a local court (possibly due to the "support your local police" attitude) and may need to appeal to a higher court. However, you must establish the basis of an appeal during the first trial. If you do not mention something there, you likely will not be allowed a chance later if the first court is a "court of record". If a judge disallows an argument or witness, explain that you are being denied an important part of your defense. Be sure the court record shows that you tried to bring up the issue. Finally, the appeal may cost a few thousand dollars. You may be able to get help from a local advocacy organization such as the Ohio Cyclists' Defense Fund of the Ohio Bicycle Federation.

If you do not make the effort for a competent defense, you are better off to plead guilty and pay a modest fine. If you fight weakly and lose, you set a very bad precedent for the next cyclist. On the other hand, if you do go to court to defend yourself and the police officer does not show up, then you win!

The best long term strategy is to educate our society about cycling issues and reform the laws. This will make harassment by both motorists and police much more rare. Political pressure may also help -- posting your account on a cyclist news group should generate critical emails from around the world. A state or local cycling advocacy group should also help if you were operating correctly.

Specific Issues You Must Be Ready to Confront

You must be prepared to address certain issues, even if they are not actually germane to any citation you received. For example, in the Selz Case, the defendant was charged with impeding traffic but the real issue was the officer thought he was riding dangerously (she was not trained or experienced in bicycle operation). In addition, the prosecutor claimed his lane position was illegal under the "far right rule". Technically, since he was not charged with these violations, the defendant should not be expected to defend against any such charges. Realistically, the defense should be prepared with a forceful expert witness.

Some of these issues include:

Accident hazards, particularly the "fear from the rear". You must be ready to show that most crashes involve tuning or crossing traffic, not traffic passing from behind. Also explain that it is easy for motorists to avoid a cyclist who is plainly in front of them -- it takes significant negligence to cause a collision.
The "far right rule" (described above). This rule requires riding as near as practicable to the edge of the road, not as near as possible. The reasonable purpose of the rule is to avoid unnecessary delay to faster traffic. Since it is unsafe and illegal to pass on a curve, at the crest of a hill, in an intersection, or similar places, it is not practicable to facilitate passing under these conditions.
Delaying traffic: Be ready to explain that every vehicle delays other drivers at times. For a discussion of the delay issue, see Bicycle Transportation and Passing Thoughts -- Bikes and Cars Sharing the Road.
The basic speed rule, UVC §11-801 requires that vehicles not be driven faster than is reasonable and prudent under the conditions.
Know of any accidents that may have recently occurred. An accident to a child riding into the street may motivate a police "crackdown". Such an accident is not relevant to an adult riding in the street.
Equal rights: No state law recognizes a vehicular "caste system" that confers superior rights to faster drivers.

References

As you educate the court about cycling, you will need references to cite. I classify these into three categories:

(1) Expert sources, include two books by John Forester Effective Cycling, MIT Press, 1993 and Bicycle Transportation, MIT Press, 1994. Another great source is John Allen's booklet Bicycling Street Smarts. I also recommend John Franklin's Cyclecraft, primarily for his excellent discussion on lane position. What he calls the "primary position" corresponds to "using the full lane" and the "secondary position" to lane sharing. This properly puts the emphasis on safety. (Because Franklin is British, you will have to interchange the left and right sides of the road.) Other expert sources include the Effective Cycling Instructor's Manual and the BikeEd Instructor Manual

(2) Official and semi-official sources include state traffic laws and brochures from safety agencies. Check your motor vehicle driver's manual for any useful information. The Guidelines for the Development of Bicycle Facilities by the Amer. Assoc. of State Highway Transportation Officials and the Uniform Vehicle Code may prove useful.

(3) The best sources are BOTH "official" and written by cycling experts, such as the state versions of Bicycling Street Smarts, which have been adapted as the bicycle driver's manual in Pennsylvania, Ohio and Florida.

See accounts of court cases in Bicycle "Right to the Road" Cases. The article The Right to Travel by Human Power from the North Carolina Coalition for Bicycle Driving includes several more examples of right to the road legal cases. Another excellent discussion of the "as close as practicable to the right-hand curb" issue is Alan Wachtel's essay, "Bicycles and the Law: The Case of California', http://home.att.net/~jattili/bikelaw.html

There is a new National Police Bicycle Awareness Curriculum, a program being developed through a grant from the National Highway Traffic Safety Administration. For information, contact the Massachusetts Bicycle Coalition.

Please send your ideas, questions, suggestions and corrections to f.oswald@earthlink.net.
Disclaimer: The author is an engineer, cyclist and "League Cycling Instructor", certified by the League of American Bicyclists but not an attorney.

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