Protecting The Rights Of Those Who Ride

Steve Magas is Ohio's Bike Lawyer. He has written about Ohio Bike Laws, bike crashes, bicycle advocacy and court cases for some 30 years. Soon we'll be adding a series of features about your favorite Ohio bike shops.

GOOGLE ADDS BICYCLING MAPS!

Wednesday 10 Mar 2010 by Steve Magas | 1 Comment

This just in the the League of American Bicyclists!

Washington, D.C. – March 10, 2010 – The League of American Bicyclists is proud to be the forum for Google to announce what all bike riders have been waiting for – Grab Your Bike and Go with Google Maps. Google is announcing at the Opening Plenary Session at the National Bike Summitthat they are adding biking directions in the U.S. to Google Maps.”This new tool will open people’s eyes to the possibility and practicality of hopping on a bike and riding,” said Andy Clarke, President of the League of American Bicyclists. “We know people want to ride more, and we know it’s good for people and communities when they do ride more – this makes it possible. It is a game-changer, especially for those short trips that are the most polluting,” Read the rest of this entry »

TROTWOOD v. SELZ – A GREAT VICTORY FOR CYCLISTS

Thursday 25 Feb 2010 by Steve Magas | 3 Comments

TROTWOOD v. SELZ

By, Steven M. Magas, The Bike Lawyer

In the summer of 1999 I was asked to become involved with a young man who had received a traffic ticket for “impeding traffic” in Trotwood, Ohio. Little did I know that the case would ultimately garner international intention, cause hundreds emails to be sent to the City of Trotwood, and generate an extremely favorable appellate court ruling that is cited all over the country today!

The case, Trotwood v. Selz, made Steven Selz a household name – at least among that small core of cycling advocates who regularly fight to protect YOUR right to ride on our nations highways. Let’s take a detailed look at Steve’s case to see what all the fuss is about!

I. THE FACTS PRESENTED AT TRIAL

The trial of this case, like most traffic matters, was quick and to-the-point. The Selz case was on the docket with dozens of other matters, but was the only serious trial of the evening on the Area One docket of Judge Connie Price. When Judge Price finally called the case for trial, the prosecution presented only one witness -the officer who gave Steve his ticket. I presented Steve Selz and an expert witness, Allan Byrum.

On July 16, 1999, Steven Selz was operating his bicycle along State Route 49 in Trotwood, Ohio, a five lane roadway with a speed limit of 45 mph. He had stopped a light and was going uphill from the light when Trotwood Police Officer Vance, with lights and siren blaring, pulled him over.

Officer Vance issued a citation to Mr. Selz for “impeding traffic” under a local Trotwood ordinance. At the February 7, 2000 trial, Officer Vance testified that Mr. Selz “…was driving in the middle of the lane…” and was going “…no more than 15 miles per hour…” She further testified that “…cars had to stop and … go over to the other lane to get around him…”

It should be noted that State Route 49 at this point consisted of FIVE lanes, two in each direction with a universal turning lane between them. It should also be noted that Mr. Selz was charged with violating Trotwood Municipal Code Section 333.04(a), for “impeding traffic” and was not charged with a violation of Ohio Revised Code Section 4511.55(A), which requires cyclists to ride “as near to the right side of the roadway as practicable…” This ended up as a critical distinction in the eyes of the court of appeals, as will be discussed below.

My cross examination of Officer Vance focused on attempting to show that Mr. Selz was traveling as a reasonable CYCLIST, as opposed to a reasonable MOTORIST. She admitted that he was traveling at a reasonable speed “for a cyclist.” She also showed a lack of knowledge of the law governing the operation of bicycles on the roadway as she testified that Steve had to stay “X feet from the curb.” Officer Vance also admitted that there was no posted minimum speed on State Route 49.

One of the critical exchanges on cross-examination was as follows:

“Q. Now, is it your testimony that Mr. Selz was riding at a slower speed than he could have otherwise ridden?

“A. A slower speed than he — no.

“Q. He was riding at a reasonably normal bicycling speed, wasn’t he?

“A. Yes, sir.”

Officer Vance had some vague notion that Mr. Selz was somehow in danger because he was riding on State Route 49, a roadway that is, admittedly not for everyone. Officer Vance candidly testified as follows on cross-examination:

Q:I take it your opinion is that State Route 49 is simply a dangerous place for bicycles to be?

A:Honestly, yes.

It became clear as the trial progressed that the City of Trotwood was going to take the position that if you can’t ride a bicycle at a speed of 45 mph then you can be charged with “impeding traffic.” Further, the prosecutor simply felt that it was “unsafe” to ride on this stretch of State Route 49 and he, and the great State of Ohio, were trying to “protect” Mr. Selz from his own foolishness by ticketing him and encouraging him not to ride this stretch of roadway.

Mr. Selz disputed some of the facts during his testimony. He testified that he was “…going as fast as he could go…” as he chugged up the hill. He denied that he was in the “…middle of the lane…” as the officer testified, but was rather towards the right half of the lane. During the prosecution’s cross examination Mr. Selz admitted that some traffic probably did slow down for him, stating “If they can’t make a lane change, yes, they would have to slow down and not run over me!”

I also tried to establish the plain silliness of the prosecution’s position. Mr. Selz testified that he had only gone 45 mph once in his entire life, and then only on a long downhill run. He testified that it was physically impossible for him to travel 45 mph on a normal flat road, let alone from a standing start at the bottom of a hill!

I also presented “expert testimony” in the form of an extremely experienced cyclist, Allan Byrum. The prosecution stipulated that the expert would testify that Mr. Selz was operating his bicycle in a reasonable fashion and in a competent manner for a bicycle operator on State Route 49 at that point in time. The expert also offered the opinion that Mr. Selz was traveling at a reasonable speed for a bicycle operator and that 45 mph is “…not only an unreasonable speed for a bicycle, it’s an unsafe speed for bicycles…” due to a variety of factors.

Once the facts were before the court, the court heard the arguments of counsel as to whether the City had proved its case against Mr. Selz.

II. THE LEGAL ARGUMENTS

The City of Trotwood Ordinance §333.04(a) states that

“No person shall stop or operate a vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with law.”

The Prosecutor argued that, in essence, if you can’t go 45 mph on Salem Avenue, you should not ride on the road. The prosecution claimed that it was that was “absurd” to allow bicycle operators to “impede traffic” because they can only go “…ten, fifteen, twenty, whatever, miles per hour and therefore become a danger to himself…” This concept of “protecting” the poor bicycle operator came through loud and clear from both the Prosecutor and the Court!

I argued that the most important word in the Trotwood ordinance was the word “traffic.” “Traffic” is what cannot be impeded under the ordinance, so just what is “traffic” under the law?

State law tells us that traffic includes far more than cars and trucks and buses. “Traffic” is defined to include “…pedestrians, ridden or herded animals, vehicles, streetcars, trackless trolleys, and other devices either singly or together while using any highway for purposes of traveling.” Thus a bicycle operator IS traffic — the bicycle operator is part of the class of people PROTECTED by the statute. The bicycle operator is one of those elements of traffic whose movement cannot be “impeded” under the law!

“Traffic,” I argued, is a broad and colorful piece of fabric, with many different threads. Not all “traffic” goes, or is capable of going, 45 mph. By including these slower moving objects in the definition of “traffic” the Ohio legislature [and the legislatures of virtually all 50 states] recognizes that vehicles of various capabilities and speeds are permitted on the roadways. If a vehicle is going as fast as it can on a roadway on which the operator has the legal right to use, how can the operator be “impeding” traffic?

I also argued that bicycles were a unique type of vehicle. Unlike motorized vehicles, the bicycle has an “engine” that tires and has a limited physical capacity. Further, wind and weather impact the speed a bicycle can safely travel, as do potholes, debris and other road hazards. No human on the planet can get a bicycle moving 45 mph uphill and it would be ridiculously unsafe to do so. The legislature is presumed to know the limitations of bicycles [and huge farm equipment and Amish buggies] and, yet, permitted such vehicles to use to the roadways. Their slower speeds are not to be condemned and ticketed – they are to be accommodated!

The trial court, of course, did not buy this argument. The court found Mr. Selz guilty as charged, stating

“…I certainly understand the impassioned defense on this case because I do believe that bicyclists need a place to ride and it is not safe a lot of times to ride it on the streets on 49. I don’t even think I’d ride there at 2:00 a.m. just because of the traffic. I don’t think it’s safe.”

After so “protecting” Mr. Selz from his own self, Judge Price found him guilty of “impeding traffic” and fined Steve $100.00, plus costs. A discussion with Mr. Selz and various bicycling folks then ensued over the question of whether this was a case to appeal.

If the case was appealed and lost, it could be a terrible blow. A loss would mean that any community in Ohio could, in essence, ban bikes from any road on which a bicycle could not meet the speed limit. This would amount to virtually every road in the state as how many of us can maintain a 25 mph pace — the speed limit of virtually every subdivision in Ohio?

I liked the odds of appealing the case. The Second Appellate District has a reputation for being fair and scholarly. I liked our case on both the law and the facts.

There were five judges on the Court of Appeals. Only three would hear an appeal, but you did not know WHICH three you got until you showed up for oral argument. Checking with a friend of mine who once clerked for one of judges on the Second Appellate District, I discovered that two of the five judges were avid outdoorsy/bike riding types of folks who might be sympathetic to our arguments. Of the remaining three, only one was likely to be opposed to our view. The other two would keep an open mind and look closely at the legal arguments. Given this scenario, we decided to proceed with an appeal.

This was the first time in my career that I had cooperated so closely with an advocacy group — The Ohio Bike Federation. Chuck Smith and the OBF were fabulous and I would do it again in a heartbeat. The OBF publicized the case on the webpage, which caused emails critical of Trotwood’s handling of the case to be sent from all over the WORLD to Trotwood.

I also provided the various court documents to be published on the OBF website, www.ohiobike.org. This included my trial brief, the entire trial transcript, my appellate brief, the city’s brief and, ultimately, the court’s decision. Further, the OBF started a Steven Selz Legal Defense Fund that collected money to help cover the cost of an appeal. I agreed to handle the appeal pro bono. However, we still had to “buy” a copy of the transcript and file it with the court.

Before we published all the material online, there were various versions of “the facts” of the case floating around. Publishing the trial transcript allowed the true “facts” of the case to be known. Further, I openly invited comments, criticism and ideas for the appeal and received dozens of emails, mostly friendly, about the case. I had a number of email exchanges with cyclists from all over the country on the case, strategy, arguments and other issues.

Ultimately, the brief was prepared and filed. This was a rather unique brief in that, in addition to typical legal arguments, I described a bit of the history of cycling in the United States and the impact cyclists, specifically the League of American Wheelmen, had in paving our roadways. I wanted the court to understand that cyclists have a 100+ year history of using the roadways and were included in the very first “vehicle codes” ever published. We added the brief to the website.

The City’s brief was also filed. This provided us with some surprises. The City virtually abandoned the view it took at trial. Rather the City now argued that it was Mr. Selz’s position on the roadway as described by the officer, in combination with his “slow speed,” that made the conviction reasonable. This was quite a change from the “get off the road if you can’t do 45mph” attitude the City had taken at trial.

I requested oral argument in the court of appeals. I thought this would be a good way to really push our best points. The City gave notice that its attorneys would NOT be appearing at the oral argument – another surprise and a signal that perhaps they were not going to fight TOO hard on this one.

Oral argument was in Dayton on October 2, 2000. Chuck Smith from the OBF was in the audience. Steve Selz had to work that day. Our three judge panel consisted of one of the “outdoorsy” judges we wanted, one of the “fair/scholary” judges and the one judge we thought would oppose our arguments. I thought the argument went extremely well. I was able to toss in several historical “tidbits” about the development of paved roads without worrying about what the other side would say, since the other side elected not to show up!

On October 20, 2000, the Court of Appeals released its decision – a 2-1 victory for Steven Selz. The dissenting judge was the judge we thought would oppose our viewpoint while the other two felt Steve was wrongly convicted.

The court did a good bit of its own research and cited a case in Georgia involving a slow moving farm combine. In that case, the Georgia court found that operator of a slow moving vehicle, which was traveling at or near its top speed, could not be convicted of “impeding traffic” under a similar law. The Court of Appeals compared the Georgia case to this one and stated:

“In either case, holding the operator to have violated the slow speed statute would be tantamount to excluding operators of these vehicles from the public roadways, something that each legislative authority, respectively, has not clearly expressed an intention to do.”

The court DID note, though, that had Steve Selz been charged with violating Ohio’s “AFRAP” law [as far right as practicable] the court would have had to uphold a conviction. An “AFRAP” violation is based on lane position. SInce there was disputed evidence as to Steve’s lane position, the appeals court would have been required to accept the facts as found by the trial court. Thus, if the trial court would have believed the officer over Steve as to where on the roadway he was riding, the appeals court would have been bound by such a finding.

In Steve’s case, though, the court was NOT bound by the trial judge’s legal conclusion that Steve was “impeding traffic.” Since Steve’s case turned on an interpretation of law the appeals court was able to say that the trial court simply misinterpreted the “impeding traffic” law.

The appellate decision was picked for official publication and, on May 14, 2001, the case hit the desk of every lawyer in Ohio. This publication gives the opinion increased importance and precedential value.

The appeal was not without risk. However, a reasoned analysis of the risk was undertaken and, with perfect 20-20 hindsight, it looks like we made a smart move. I hope this review of the case helps out someone considering a trial on their bicycling traffic matter! In a future column, I will discuss some tactics, techniques and tricks you can use in fighting bicycle traffic tickets.

If you search for “Trotwood v. Selz” on google, you can find citations and discussions of the case all over the country during these past 10 years or so. What started out as a dinky little traffic ticket has become one of the important victories in the world of “Bike Law!”

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UPDATE on FLORIDA CYCLIST’s DEATH – SINGER IN JAIL – Held Without Bond

Tuesday 9 Feb 2010 by Steve Magas | 1 Comment

Carlos Bertonatti, the pop singer charged with drunkenly running into, and killing,Florida bicycle rider Christopher LeCanne, is facing some new problems – relating to his passport, or more accurately “passports.”

According to Hartford, CT, prosecutors filed a motion to return Bertonatti to jail after he had posted a $100,000.00 bond. The reason, according to the report, was that Bertonatti “lied to Judge David Miller” about possessing only a Venezuelan passport and because he has a history of missing court appearances in traffic cases.

The New Miami Times reports, “…According to prosecutors, Bertonatti has “an additional passport issued by Argentina,” which he didn’t see fit to mention during his bond hearing. What’s more, prosecutors say that Bertonatti has missed court hearings on four separate occasions in the past on traffic charges. Strangely, prosecutors also testified in court that they have reason to believe that Bertonatti may actually hold a third passport that he didn’t mention in his bond hearing, from Romania, of all places…”

In this case, Bertonatti is charged with being over the 0.08% BAC limit [he reportedly blew a 0.122%] and with hitting, and killing, a bicycle operator and then leaving the scene, dragging the man’s bicycle for miles while the cyclist lay bleeding to death on the side of the road.

On January 8,2010, he received a speeding ticket for going 80mph in a 50mph zone. Nine days later, he allegedly struck and killed the cyclist. This crash occurred in the morning. He is facing charges of felony DUI manslaughter, vehicular homicide, driving without a license, leaving the scene of a fatal accident, and resisting arrest. He has entered a Not Guilty plea.

On February 8, 2010, SunSentinel.com reported as follows:

“Miami-Dade Circuit Judge David Miller ruled that Carlos G. Bertonatti, 28, should be held without bond after prosecutors alleged he was not entirely truthful when he told the court he had only a Venezuelan passport.

Bertonatti holds another passport from Argentina, which federal agents discovered. Bertonatti has also listed himself as a citizen of Romania, in addition to residential-alien status in the United States.

Armed with evidence of Bertonatti’s multiple citizenships, Miller granted the wish of prosecutors, who feared the suspect might flee the country to evade prosecution.

“The web of deceit has caught up with him,” State Attorney Katherine Fernandez-Rundle said. “He can’t bond out and now he’s got to sit there, in jail, and wait.””

OHIO’S BIKE LAWS

Thursday 28 Jan 2010 by Steve Magas | 81 Comments

OHIO BIKE LAWS

By Steven M. Magas, Ohio’s Bike Lawyer[1]

Have you ever wondered what “The Law” actually SAYS about riding a bicycle? Many Ohio riders might be familiar with some of the common rules or phrases. The “AFRAP” rule, for example. Many of us also have a sense that we have a “right” to ride our bicycles on the roadway, but where does that right come from? What limitations are there on that right? Can that right be taken away? Can cities pass their own bike laws? Can those be different from State Law?

A few years ago, a number of us on the Board of the Ohio Bicycle Federation took on the challenge of listing the most important laws applicable to cyclists in Ohio. You can read the actual results of our efforts on the OBF’s website. 

Below are annotated excerpts of laws that EVERY Ohio Cyclist should be familiar with – at least those who want to venture out on the roadway. I’ve highlighted in bold some of the most critical language and have added my own commentary in italics to the original OBF commentary.

Where to start? Why at the beginning of course – with Title 45 of the Ohio Revised Code. “Title 45” contains the laws that govern operation of all vehicles on Ohio roads, including bicycles. The laws describe what a driver is required to do or prohibited from doing. But laws do not tell people how to drive. That is the function of a driver’s manual.

You can find ALL Ohio laws in the Ohio Revised Code, and the Traffic Laws in Title 45. If you actually go to the library and want to pull the books off the shelf, the entire Ohio Revised Code is a huge set of bright red books. The traffic laws are found in Title 45. Chapter 4511 of Title 45 contains the “Rules of the Road” and Chapter 4513 has the equipment rules.

Be warned, though, that these are only the STATE traffic laws. Ohio is a “Home Rule” state. The “Home Rule” provision in the Ohio Constitution allows local governments to pass their own laws. There are 88 counties in Ohio and hundreds of cities, villages, and other political, “ordinance-passing” jurisdictions. Each political body can and does pass its own laws. You will find local laws governing bicycle riding in many of these municipalities. Some of these local laws are… well… just stupid and contrary to state law [and common sense]. In fact, in the Bikelawyer’s Blog you’ll find an entire piece I wrote about The Stupid Laws.

I am including a discussion of the “Home Rule” issue… and how you might be able to fight a ticket using this complex legal theory… however, Bottom Line, ALWAYS CONSULT LOCAL LISTINGS for additional laws applicable in your neighborhood!

Attorney Chris Carville [The Kentucky Bike Lawyer] and I have created a lovely 4×6 card featuring the key elements of OHIO Bike Law and KENTUCKY Bike Law. Want some? Just WRITE ME A NOTE and I’ll send them to you. I can send you a few for your closest friends – or a dozen – or 50 or 100 – or even 1000+ if you’re really friendly. They make great Stocking Stuffers, Party Favors and Swag Bag Gifts!

Just SEND ME A NOTE at BikeLawyer@Me.Com and tell me how many you want, and where to send them!

SO, without further ado, I present….. Ohio’s Bike Laws…

OHIO REVISED CODE

TITLE 45

4501.01. Definitions. As used in this chapter and Chapters 4503., 4505., 4507., 4509., 4511.,4513., 4515., and 4517. of the Revised Code, and in the penal laws, except as otherwise provided:

(A)”Vehicle” means every device, including a motorized bicycle, in, upon, or by which any person or property may be transported or drawn upon a highway, except that “vehicle” does not include any motorized wheelchair, any electric personal assistive mobility device, any device that is moved by power collected from overhead electric trolley wires or that is used exclusively upon stationary rails or tracks, or any device, other than a bicycle, that is moved by human power.

***

(G) “Bicycle” means every device, other than a device that is designed solely for use as a play vehicle by a child, that is propelled solely by human power upon which a person may ride, and that has two or more wheels, any of which is more than fourteen inches in diameter.

Comment: A History Lesson is in order here. In the 1880’s bicycle operators wielded a LOT of political power. The “Good Roads Movement” was an organized political effort to force municipalities to pave roads. Farmers and cyclists banded together with some business interests, but cyclists led the way. The newly formed “League of American Bicyclists” developed a following of more than 1,000,000 very quickly. Courts began to recognize cyclists as having rights on the roadways, particularly when those new-fangled MOTOR vehicles started popping up!

In the late 1800’s the very first Vehicle Codes started to be written to try to put some order on the roadways. In virtually every case, including Ohio, a “bicycle” was included in the definition of “vehicle” and was recognized as having a right to the roadway. Certain special provisions for bikes were put into play, but all in all, cyclists used their political clout to get us a spot on the pavement!

In Ohio, a bicycle is defined as a vehicle and thus is governed by a uniform set of rules common to all vehicles and a small set of specific rules for bicycles. (There are other specific rules for other vehicle types, such as trucks or busses.) The definition of what types of things are “bicycles” was recently revised to be broader in scope. The annotated list below summarizes the most important parts of the traffic rules and equipment rules that govern bicycle driving. People who try to make up their own rules have an accident rate five times higher than knowledgeable cyclists who follow the rules of the road.

This definition has changed a bit in recent years. When I first wrote this piece in 2010 it was limited to 2-wheelers and certain 3-wheelers. Well… the bike market and recumbent market has exploded since then and law was amended to capture any 3-wheel adult bicycle. Then we became aware of a problem involving a FOUR-wheeler… a fellow in Lakewood, Ohio was being told by Police there that he could not pedal a 4-wheeled bike around town with his autistic son because it didn’t meet the definition of “bicycle” in the Code. So… we pushed to change the definition again, and the final version, shown above, came into being.

4511.07. Local traffic regulations.

(A) Sections 4511.01 to 4511.78, 4511.99, and 4513.01 to 4513.37 of the Revised Code do not prevent local authorities from carrying out the following activities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power:

***

(8) Regulating the operation of bicycles: provided that no such regulation shall be fundamentally inconsistent with the uniform rules of the road prescribed by this chapter and that no such regulation shall prohibit the use of bicycles on any public street or highway except as provided in section 4511.051 of the Revised Code;

(9) Requiring the registration and licensing of bicycles, including the requirement of a registration fee for residents of the local authority;  (B) No ordinance or regulation enacted under division (A)(4), (5), (6), (7), (8), or (10) of this section shall be effective until signs giving notice of the local traffic regulations are posted upon or at the entrance to the highway or part of the highway affected, as may be most appropriate.

Comment: When we looked at the state of the law in preparing the 2006 Better Bicycling Bill, there was a lot of discussion of the patchwork quilt of local laws that all of us faced. In the Cincinnati area alone, there are more than FORTY separate jurisdictions capable of passing “bike laws.” The number near Cleveland was even higher. Since there was no restriction on what those laws could say, we often found neighboring cities would have wildly different “bike laws.” Not only did this make it difficult for cyclists to know and obey local law, it just didn’t make sense.

The most important of the reforms passed in the 2006 Better Bicycling Bill requires that any local regulations be consistent with the uniform rules of the road. In addition, signs are required to tell of any permitted local regulations. Unfortunately, some communities have been very slow to remove non-conforming ordinances that mandate unsafe practices.

You MUST know your local rules. Sometimes local laws get passed that are just…stupid. For a review of some of those you can read my piece here- a Guide to the Stupid Laws.

However…
Ohio is a HOME RULE STATE! This means that cities have the power under the Ohio Constitution to do their own thing- write their own laws… on some topics…Home Rule litigation erupts when a city passes a law that someone doesn’t like- the law conflicts with State Law and the offended party claims that State Law should be uniform such that the city does not have the power to write a conflicting law. The test for this is…complicated…

4511.22. Slow Speed

(A) No person shall stop or operate a vehicle, trackless trolley, or street car at such an unreasonably slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with law.

***

(C) In a case involving a violation of this section, the trier of fact, in determining whether the vehicle was being operated at an unreasonably slow speed, shall consider the capabilities of the vehicle and its operator.

Comment: The “slow speed” statute was amended in 2006 as the result of a case I handled – State v. Selz. In the Selz case, Steve Selz was a true “transportation cyclist” – he owned no car and went everywhere by bike. In 1999, Steve was riding on S.R. 44 in Trotwood – a 5 lane, 45 mph roadway. After stopping at a light, Steve pedaled off in the right lane, with cars behind him. A police officer didn’t like seeing the cars behind him and pulled him over, citing him for “impeding traffic.”

I took the case pro bono, to try to help Steve out. At trial, we presented expert testimony that what Steve did was perfectly appropriate and that his speed was appropriate FOR A CYCLIST. The prosecution argued that if he could not travel at the 45 mph speed limit, he shouldn’t be on the road blocking “traffic.” I argued that under the definition of traffic in the Revised Code, Steve WAS “traffic” just like any slow moving vehicle.

The trial judge disagreed and found Steve Guilty. We appealed and, with the help of the OBF, publicized Steve’s case through the Internet. Trotwood got emails from all over the WORLD chastising it for prosecuting Steve. We won a 2-1 decision on appeal, with the court holding that in analyzing an “impeding traffic” charge, the court must consider the capabilities of the vehicle and its operator. Since the officer conceded that Steve was going at a reasonable speed for a cyclist, the court overturned the conviction.

When we looked at the state of the law in preparing the 2006 Better Bicycling Bill, we thought it would be important to change the “Slow Speed” statute to incorporate the holding of State v. Selz and the highlighted language was added.

4511.25. Lanes of travel upon roadways of sufficient width.

(A) Upon all roadways of sufficient width, a vehicle or trackless trolley shall be driven upon the right half of the roadway except as follows:

(1) When overtaking and passing another vehicle proceeding in the same direction, or when making a left turn under the rules governing such movements;

(2) When an obstruction exists making it necessary to drive to the left of the center of the highway; provided, any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard;

(3) When driving upon a roadway divided into three or more marked lanes for traffic under the rules applicable thereon;

(4) When driving upon a roadway designated and posted with signs for one-way traffic;

(5) When otherwise directed by a police officer or traffic control device.

(B)(1) Upon all roadways any vehicle or trackless trolley proceeding at less than the prevailing and lawful speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic, and far enough to the right to allow passing by faster vehicles if such passing is safe and reasonable, except under any of the following circumstances:

(a) When overtaking and passing another vehicle or trackless trolley proceeding in the same direction:

(b) When preparing for a left turn;

(c) When the driver must necessarily drive in a lane other than the right-hand lane to continue on the driver’s intended route.

(B)(2) Nothing in division (B)(1) of this section requires a driver of a slower vehicle to compromise the driver’s safety to allow overtaking by a faster vehicle.

Comment: Section 4511.25(A) is a general rule that applies to all vehicles, including bicycles. Some people think it is safer to ride on the left to “see traffic coming”. This is illegal and wrong and VERY DANGEROUS! Pedestrians are required to walk facing traffic where there are no sidewalks so they can sidestep off the road if necessary. But you cannot sidestep a bike. Riding on the left is both illegal and dangerous. Crash statistics show that wrong way riding has about 3½ times the risk as riding on the right.

Section 4511.25(B) simply means that slower vehicles should not unnecessarily delay faster traffic. (See also § 4511.55 below.) The language of (B)(2) is important as it gives a bicycle operator the right to make decisions, when being passed, based on safety concerns.

4511.27. Overtaking and passing of vehicles proceeding in the same direction.

(A) The following rules govern the overtaking and passing of vehicles or trackless trolleys proceeding in the same direction:

(1) The operator of a vehicle or trackless trolley overtaking another vehicle or trackless trolley proceeding in the same direction shall, except as provided in division (A)(3) of this section, signal to the vehicle or trackless trolley to be overtaken, shall pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle or trackless trolley. When a motor vehicle or trackless trolley overtakes and passes a bicycle or electric bicycle, three feet or greater is considered a safe passing distance.

(2) Except when overtaking and passing on the right is permitted, the operator of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle at the latter’s audible signal, and the operator shall not increase the speed of the operator’s vehicle until completely passed by the overtaking vehicle.

(3) The operator of a vehicle or trackless trolley overtaking and passing another vehicle or trackless trolley proceeding in the same direction on a divided highway as defined in section 4511.35 of the Revised Code, a limited access highway as defined in section 5511.02 of the Revised Code, or a highway with four or more traffic lanes, is not required to signal audibly to the vehicle or trackless trolley being overtaken and passed.

Comment: Since cyclists usually ride near the right side of the road, beginners are tempted to pass slow or stopped traffic on the right, especially in a “bicycle lane” with a painted line. This can present some problems, especially at a traffic light where the rider slides up along stopped traffic… if the car at the front of the line is making a right turn you may have created a conflict!

In 2009 a bill was introduced into the Ohio legislature [HB 174] which would establish a safe passing distance of “not less than three feet” whenever a motor vehicle overtakes a bicycle. In 2013 another bill was introduced, but it died in the Ohio Senate. In 2015 the bill was re-introduced again. This time we think the bill has some legs.

FINALLY, in 2017, we were able to convince the legislature that a three foot law was needed and this statute was amended with the sentence added at the end of the A section. This took a LOT of work – phone calls & meetings with state legislators, traveling back and forth to Columbus to testify in committee hearings and urge/nudge the legislature in the right direction.

Does a “Three Foot Law” solve all our problems? No, of course not. It’s a tool. We did not seek passage of a three foot law to get more “tickets” written, although that is slowly happening. Rather, the Three Foot Law is a HUGE Educational Tool. Having this “on the books” means that EVERY 16 year old kid studying for her/his driving test will have to learn about passing bicycles safely. The Three Foot Law provides a mandatory Zone of Safety around a bicycle that SHOULD make passing bicycles safer. Further, in the event of a crash it is one more tool the cyclist’s lawyer can use to convince the motorist’s insurance company that the motorist was at fault.

4511.31. Hazardous zones

(A) The department of transportation may determine those portions of any state highway where overtaking and passing other traffic or driving to the left of the center or center line of the roadway would be especially hazardous and may, by appropriate signs or markings on the highway, indicate the beginning and end of such zones. …

(B) Division (A) of this section does not apply when all of the following apply:

(1) The slower vehicle is proceeding at less than half the speed of the speed limit applicable to that location.

(2) The faster vehicle is capable of overtaking and passing the slower vehicle without exceeding the speed limit.

(3) There is sufficient clear sight distance to the left of the center or center line of the roadway to meet the overtaking and passing provisions of section 4511.29 of the Revised Code, considering the speed of the slower vehicle.

Comment: “Hazardous Zones” refers to “Double Yellow Lines” or “No Passing” zones. This is not a “bike law” per se as it applies to any type of slower moving vehicle. However, Section 4511.31(B) should help reduce tension between cyclists and faster drivers by codifying what GOOD drivers did anyway – checked ahead, made sure it was safe, and went around the slower moving cyclist. . Now, motorists can pass bicyclists, or Amish buggies or slow moving farm equipment, in “no passing” zones IF passing is safe and the three elements of Section (B) are met. This was an important addition to the law which we incorporated in the 2006 Better Bicycling Bill.

4511.36. Rules for turns at intersections.

The driver of a vehicle intending to turn at an intersection shall be governed by the following rules:

(A) Approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway.

(B) At any intersection where traffic is permitted to move in both directions on each roadway entering the intersection, an approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof and by passing to the right of such center line where it enters the intersection and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.

Comment: The rules for turns are exactly the same for bicycles as for other vehicles – merge to the appropriate position (to the right for right turns, to the left for left turns), yield to any traffic that has the right of way and then turn.

Getting into position for a left turn may involve merging across one or more lanes of traffic. If traffic is heavy, you should start doing this early enough to take advantage of any gaps in traffic. Otherwise, there may not be a gap when you need it. This right to left movement across lanes of travel to set up the left turn has the potential for conflict and needs to be handled CAREFULLY. The earlier in the game the better…

Interesting to note the use of that goofy word, “Practicable.” It comes up below in one of the most important rules of the road for cyclists, yet is completely UNDEFINED in the Ohio Revised Code. If you do a search of the entire O.R.C. for the word, you see that it is used over 250 times int eirh code…all without a definition.

In most laws, the use of the word “practicable” comes in the phrase “as soon as practicable” and defines a time when some act must be completed. Another use is found in the Rules for Use of Alternating Current” in MINES [ § 1567.17] as follows: If feed wires are installed in entries that are not equipped with trolleys, they are to be installed as close to the rib as practicable.

Clearly “practicable” has a meaning that includes SAFETY and REASONABLENESS built into it. This is what I have been arguing for years [and what we pushed for in 2006 when 4511.55’s AFRAP law was amended].

4511.39. Turn and stop signals

No person shall turn a vehicle or trackless trolley or move right or left upon a highway unless and until such person has exercised due care to ascertain that the movement can be made with reasonable safety nor without giving an appropriate signal in the manner hereinafter provided.  When required, a signal of intention to turn or move right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle or trackless trolley before turning, except that in the case of a person operating a bicycle, the signal shall be made not less than one time but is not required to be continuous. A bicycle operator is not required to make a signal if the bicycle is in a designated turn lane, and a signal shall not be given when the operator’s hands are needed for the safe operation of the bicycle. …

Comment: Never turn or change lanes without first yielding to any traffic that has the right of way, and give a signal if possible. However, skip the signal if your hand is needed for control or brakes. This is an important addition to the Bike Laws. Motorcycles have turn signals – both hands are required for motorcycle operation as they have to deal with the clutch and throttle and brakes. Not so for bicycle riders who MAY be able to use hand signals. BUT… if you find yourself needing both hands, the law gives you the option of not taking them off the handlebars.

4511.40. Hand and arm signals

(A) Except as provided in division (B) of this section, all signals required by sections 4511.01 to 4511.78 of the Revised Code, when given by hand and arm, shall be given from the left side of the vehicle in the following manner, and such signals shall indicate as follows:  (1) Left turn, hand and arm extended horizontally;  (2) Right turn, hand and arm extended upward;  (3) Stop or decrease speed, hand and arm extended downward.  (B) As an alternative to division (A)(2) of this section, a person operating a bicycle may give a right turn signal by extending the right hand and arm horizontally and to the right side of the bicycle.

Comment: The right-arm turn signal described in (B) above is more easily understood. This change in the law was brought about some years ago and amended in 2019 to incorporate electric bicycles.

4511.52. Bicycles – issuance of ticket – points not assessed

(A) Sections 4511.01 to 4511.78, 4511.99, and 4513.01 to 4513.37, of the Revised Code that are applicable to bicycles apply whenever a bicycle is operated upon any highway or upon any path set aside for the exclusive use of bicycles.

(B) Except as provided in division (D) of this section, a bicycle operator who violates any section of the Revised Code described in division (A) of this section that is applicable to bicycles may be issued a ticket, citation, or summons by a law enforcement officer for the violation in the same manner as the operator of a motor vehicle would be cited for the same violation. A person who commits any such violation while operating a bicycle shall not have any points assessed against the person’s driver’s license, commercial driver’s license, temporary instruction permit, or probationary license under section 4510.036 of the Revised Code.
(C) Except as provided in division (D) of this section, in the case of a violation of any section of the Revised Code described in division (A) of this section by a bicycle operator or by a motor vehicle operator when the trier of fact finds that the violation by the motor vehicle operator endangered the lives of bicycle riders at the time of the violation, the court, notwithstanding any provision of the Revised Code to the contrary, may require the bicycle operator or motor vehicle operator to take and successfully complete a bicycling skills course approved by the court in addition to or in lieu of any penalty otherwise prescribed by the Revised Code for that violation.

Comment: 4511.52(A) Means that the standard traffic rules – the Rules of the Road – apply to bicycle drivers. The Rules of the Road provide an efficient algorithm of safety. Follow the algorithm and nobody gets hurt. These driving laws allow safe, fast and efficient travel on Ohio’s roadways.

Riding bicycles on sidewalks or multi-use “bike paths” is moderately safe only if done at slow speeds and extremely carefully. Ohio continues to add more miles of trails and we are encouraging cities and the state to make those paths something other than a circle. There has been a move afoot, for example, to link the Ohio River and Lake Erie. You can read about the Ohio To Erie Trail here. Path riding is not covered in this digest.

One of the very first “bicycle” cases I handled was WAY back in the mid-1980s. A cyclist had received a ticket for drunk cycling. That was clearly permitted under the law. BUT, he found that the BMV had assessed SIX POINTS against his motor vehicle license. He thought that was unfair and came to me for help. The highlighted portion of the code was NOT part of the law back then. We ended up Section (B) Means that bicycle violators may be ticketed but will not have “points” assessed against any driver’s license, except for a DWI offense. We ended up getting a Court Order mandating that the Six Points be removed and we then served the Order on the BMV and had the matter cleared up. I helped get the law changed so future cyclists didn’t get points added to the license for cycling infractions.

Section (C) allows judges to offer a cycling skills course to violators- be they bicyclists or motor vehicle operators! So far, I am unaware of ANY judge who has actually used this code section, but hey… you never know…

4511.54. Prohibition against attaching bicycles and sleds to vehicles

No person riding upon any bicycle, coaster, roller skates, sled, or toy vehicle shall attach the same or self to any streetcar, trackless trolley, or vehicle upon a roadway.

I call this the Marty McFly Rule…for obvious reasons…

AFRAP– THE KEY OHIO BIKE LAW

4511.55. Operating bicycles and motorcycles on roadway

(A) Every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable obeying all traffic rules applicable to vehicles and exercising due care when passing a standing vehicle or one proceeding in the same direction.

(B) Persons riding bicycles or motorcycles upon a roadway shall ride not more than two abreast in a single lane, except on paths or parts of roadways set aside for the exclusive use of bicycles or motorcycles.

(C) This section does not require a person operating a bicycle to ride at the edge of the roadway when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway include when necessary to avoid fixed or moving objects, parked or moving vehicles, surface hazards, or if it otherwise is unsafe or impracticable to do so, including if the lane is too narrow for the bicycle and an overtaking vehicle to travel safely side by side within the lane.

Comment: AFRAP – or “As Far Right As Practicable” is a bit of language that is, sadly, present in traffic laws in just about every state. Legislatures DO allow bicycles to be used on the roads… but… it’s like they didn’t REALLY want to give cyclists the FULL use of the roads so they all said “OK, you can ride, but you have to stay OVER THERE, out of the way of REAL traffic…”

Section 4511.55(A) is one of the most important, and misquoted, bike laws in Ohio. Many folks [including police officers] will tell cyclists that they are required to ride “as close as possible” to the curb. That’s NOT what it says or means. The word “practicable” is an odd word, but a word that clearly incorporates the notion of SAFETY.

How does a Police Office evaluate whether you are riding “Too Far to the Left?” On cross examination I often ask the officer “Where is the magic line of “practicability” – to the right of which the cyclist is riding Legally and the the LEFT of which you believe he’s riding unlawfully?” Then… ” and then “…tell me sir, just HOW is the CYCLIST supposed to know whether his lane position is “legal” in YOUR mind if she/he is just trying to choose a lane position that is safest for her/him???”

The new paragraph (C)- added in the 2006 Better Bicycling Bill – should help reduce this confusion. There are many conditions where it is much safer to ride near the middle of the lane. It is not obviously not practicable (practice-able) to ride to the right when passing on the left, or turning left. As you ride you will need to avoid objects in the gutter, parked cars, moving vehicles, pedestrians, animals, surface or other hazards.

The biggest, somewhat secret, change to 4511.55 was to insert a “Too Narrow” exception to the AFRAP rule. This exception allows the exception to apply to just about EVERY lane in Ohio! Why? Because just about every lane in Ohio is “too narrow” to be shared side-by-side with a vehicle.

In this graphic, Florida bike advocate Keri Cafferty shows, to scale, how trucks impede on the 3 foot cushion of safety that is mandated for cyclists. She only gives 30-40 inches of space for the cyclists on far right side of the 14 foot lane… I’ll suggest that…perhaps… some of us [mysewlf included] may require a tad bit more than that… she also paints the cyclist as riding a traditional upright two-wheeler. Bicycles with 3 or more wheels can have a far wider profile.

Many cycling experts will testify under oath that the BEST PRACTICE for cyclists is to NOT hug the white line, but rather to ride a some feet off the white line and well into the lane. This lane position makes the bicycle operator far more “conspicuous” to traffic behind and ahead while also keeping some roadway to the right for the rider to use in an emergency.

A cyclist who “hugs the curb” unintentionally invites motorists to pass with unsafe clearance. I’ve often written that the lane divider, or center lines, are almost like a plate of glass to a motorist passing a cyclist and if the motorist thinks she/he can squeeze in between the cyclist and the divider line, they will do it regularly. Riding a few feet off the white line, or near the middle of a narrow lane helps overtaking motorists realize that they must “break the plane” of glass and use the next lane to pass.

The real purpose of this AFRAP law is to help faster traffic keep zipping along, of course, by moving cyclists over to the right. However, NO law mandates unsafe operation and the phrase as near right as practicable is highly flexible, varying widely according to conditions. Positions well away from the edge of the road can be in compliance. The new EXCEPTION TO AFRAP found in the “too narrow” provisions of 4511.55C give cyclists in Ohio a very strong legal position if challenged.

Section 4511.55(B) allows riding two abreast. As a matter of courtesy, not law, I believe cyclists should avoid unnecessary delay to other traffic. Please be courteous and “single up” when other drivers wish to pass if such passing is safe and reasonable. By doing so, you cause the meter measuring Public Opinion to slide ever so slightly in our favor! But…

As a matter of LAW cyclists have the legal right to ride two abreast and NOT give way – at least until a vehicle starts a passing maneuver. In State v. Patrick, 153 Ohio Misc.2d 20, Tony Patrick and another rider were riding two abreast when a police officer ordered them to get off the road. They refused and Tony was ultimately stopped, TASER-ed, beaten and arrested by police. However, the trial judge dismissed all charges holding, in part, that cyclists have the right to ride two abreast. The judge in that case, a cyclist himself, stated that while cyclists SHOULD display courtesy to motorists, there is no legal requirement that they give way.

There is no violation if any of the following apply: (1) If there is no traffic being delayed; (2) If the cyclists are traveling as fast as other traffic; (3) If traffic can reasonably pass by using another lane; (4) If the lane is too narrow or it is otherwise unsafe for passing.

4511.56. Bicycle signal devices

(A) Every bicycle when in use at the times specified in section 4513.03 of the Revised Code, shall be equipped with the following:

(1) A lamp mounted on the front of either the bicycle or the operator that shall emit a white light visible from a distance of at least five hundred feet to the front and three hundred feet to the sides. A generator-powered lamp that emits light only when the bicycle is moving may be used to meet this requirement.

(2) A red reflector on the rear that shall be visible from all distances from one hundred feet to six hundred feet to the rear when directly in front of lawful lower beams of head lamps on a motor vehicle;

(3) A lamp emitting either flashing or steady red light visible from a distance of five hundred feet to the rear shall be used in addition to the red reflector. If the red lamp performs as a reflector in that it is visible as specified in division (A)(2) of this section, the red lamp may serve as the reflector and a separate reflector is not required.

(B) Additional lamps and reflectors may be used in addition to those required under division (A) of this section, except that red lamps and red reflectors shall not be used on the front of the bicycle and white lamps and white reflectors shall not be used on the rear of the bicycle.

(C) A bicycle may be equipped with a device capable of giving an audible signal, except that a bicycle shall not be equipped with nor shall any person use upon a bicycle any siren or whistle.  (D) Every bicycle shall be equipped with an adequate brake when used on a street or highway.

Comment: An unseen cyclist is in great danger. I’ve been tracking fatal bicycle crashes in Ohio for many years. Each year almost HALF of all cyclists killed are killed in the dark. Many fail to use appropriate lights. The law REQUIRES front & rear lights, and rear reflectors. You should be a BRIGHT and as CONSPICUOUS as possible if you are riding in the dark, or when weather conditions make it difficult to see. The reflectors that come with new bikes are grossly inadequate for nighttime visibility. Always use both a headlight and taillight when you ride in the dark. Today’s new lighting systems are remarkable. You can spend some money and get an unbelievably bright headlight/taillight combo… You can also tape a flashlight to your handlebars, get a red blinkie for the rear, and ride “legal.”

While there is no LAW that mandates ANY clothing choice, there are some items you can buy that help you practically glow in the dark. I have one of these ProViz jackets and it is AMAZING…

4511.711. Driving upon sidewalk area

No person shall drive any vehicle, other than a bicycle, upon a sidewalk or sidewalk area except upon a permanent or duly authorized temporary driveway.   Nothing in this section shall be construed as prohibiting local authorities from regulating the operation of bicycles within their respective jurisdictions, except that no local authority may require that bicycles be operated on sidewalks.

Comment: Sidewalk riding is controversial. In the 2006 Better Bicycling Bill we added the highlighted language to this code section. We felt it was EXTREMELY important to make sure local authorities knew that they could not “ban” bicycle operation by mandating that bicycles only be ridden on the sidewalk. By the same token, we did not want to prevent communities from banning sidewalk riding.

Sidewalk riding is generally more dangerous than riding on the roadway. Accident studies show that even low-speed sidewalk riding has about double the accident rate as riding on the road. The danger increases with speed. If you ride on the sidewalk, every intersection and even every driveway is a potential collision site. Motorists crossing your path do not look for conflicting traffic on the sidewalk, especially if you are coming from the “wrong way”.

While there is no statewide ban on sidewalk riding, there are MANY jurisdictions that have some sort of sidewalk ban in place. In some cities, you are just flat out banned from riding a bike on the sidewalk. Some ban riding in a defined “business district” and others take the approach of banning riders over a certain age from riding on the sidewalk, while allowing young children to ride. In some cities there are no crosswalk rules, some require you to dismount and walk through crosswalks.

As always, consult local listings for the laws in place for wherever YOU will be riding!

HOME RULE

As I pointed out above, Ohio cities have the power to draft their own laws – including traffic laws, and “bike laws.” Historically, we have had problems develop when neighboring cities passed conflicting laws governing bicycle operation.

In 2006, the Ohio Bicycle Federation developed and pushed through the legislature a series of “Bike Law” reforms that, among other things, prohibited local jurisdictions from passing local bike laws that conflict with state law.

I wish I could say “Voila – problem solved” but that’s not the case.

Ohio is a “home rule” state. This means our Ohio Constitution allows local jurisdictions a lot of power in passing their own laws. Whenever there’s a conflict between state and local laws someone may file a lawsuit challenging one or the other. Often the city attorney argues that the city has the power to pass laws which differ from state law. These are long, drawn out and EXPENSIVE law suits requiring a tremendous amount of legal work. These battles are usually fought by large corporations or big special interest groups.

Two recent examples of “home rule” litigation bear this out. In the “Tow Truck Case – City of Cleveland v. State of Ohio” of 2014, the city of Cleveland had rules for tow truck operators and the state had passed a law giving the Public Utilities Commission of Ohio [PUCO] the exclusive power to regulate “for hire motor carriers.” The state included tow trucks in the definition of “for hire motor carriers.” The City of Cleveland sued the State of Ohio, claiming the state law was unconstitutional based on the constitutional “home rule” provisions. The Ohio Supreme Court agreed – holding that a sentence of state law was unconstitutional and allowing the city to regulate tow trucks.

In 2015, “Fracking” laws came under fire. The city of Munroe Falls had long standing laws governing any mining or drilling operations within its boundaries. Later, the state passed laws relative to obtaining mining permits throughout the state. Beck Energy obtained a state permit and started drilling, but was ordered to stop its “fracking” efforts by Munroe Falls based on the city’s mining ordinances. Beck sued…and won. The Supreme Court held that here state law controlled and cities throughout Ohio had no power to control mining within their boundaries.

How do Tow Trucks and Mining play into “Bike Laws,” you ask? Well, let’s say your city decides that it is “too dangerous” for you to ride your bike down Main Street during rush hour, so it passes a bike ban. You point out that state law prohibits bike bans. The city says, under Home Rule we can do what we want…

Perhaps a better example is the one I encountered in one of my cases. The City of Pickerington, near Columbus, had a law which required cyclists to use a sidewalk if one was adjacent to the road. State law clearly says that cyclists cannot be banned from most roads and that cyclists cannot be forced to use the sidewalk. My client was riding on the road. He was rear-ended by an elderly driver and suffered a severe brain injury. Pickerington Police wrote the report and held my client “at fault” for “riding on the road” when there was an adjacent sidewalk. I reached out to the City Attorney and suggested that the city’s ordinance conflicted with state law. I asked if the city really wanted to get into a long legal battle over this issue – he agreed that it did not. The report was amended to reflect that state law trumped the city ordinance and the crash case proceeded. Had the city not been as cooperative I may have had serious problems in pursuing money damages for a client who did absolutely nothing wrong.

In Dayton, Ohio, however, a recent case [which the cyclist LOST] may provide a blueprint for helping cyclists WIN “home rule” cases in the future. In Kane v. City of Dayton Mr. Kane was injured when he was run over by a City of Dayton fire truck. Kane was in the bike lane and the truck operator made a right turn across his path, pinning him under the huge truck. Kane sued the city.

This crash occurred around 30 minutes after sunset. Kane did NOT have a light on his bike. The City argued that Kane was negligent because he violated ORC 4511.56, which requires cyclists to have Lights ON at sunset. Slam dunk? Not so fast…

Kane pointed out that the City of Dayton had passed a local ordinance which said that cyclists on the road did not have to have Lights ON until ONE HOUR PAST SUNSET! Slam Dunk? … Not so Fast…

The City of Dayton came back and argued that it LACKED AUTHORITY TO PASS that law… that traffic laws could not be changed by local law and that state law trumped any inconsistent state law…

Guess what… the Court AGREED with the City of Dayton. The Court went through the Home Rule analysis required by the line of Ohio Supreme Court cases discussed above and, when it came out the other side the Court said Yes, Traffic Laws must be uniform and ANY alteration of traffic laws by a city which make that law inconsistent with state law are invalid! So the cyclist “loses” here.

[Don’t worry. The cyclist’s attorney smartly argued that the actual CAUSE of the crash had nothing to do with the cyclist not having a tiny red lighit on the back of his bike 30 minutes after sunset [when it was still “light” out]. Rather he argued that the cause of the crash was the failure of the driver to pay attention. They parties reached a significant six-figure settlement.]

While the cyclist “lost” here, this case is important as it provides a blueprint for cyclists attacking “the Stupid Laws” – mandatory single file laws, bike bans, mandatory “horn” or other equipment laws and the like. The law in Kane v Dayton was beneficial to cyclists but was struck down as being inconsistent. The same result should occur when the Stupid Laws are challenged in court.

So THERE YOU HAVE IT… a brief… OK, 6,700 word… summary of Ohio’s Bike Laws.

Now…GO OUT THERE AND RIDE YOUR BIKE!

== == == == == ==

[1] Steve Magas, Ohio’s Bike Lawyer, is an avid cyclist and Ohio trial lawyer whose law practice has focused on protecting the rights of riders for more than 35 years. Steve has handled more than 450 “bike cases,” in which cyclists have been hurt or killed. Steve is a frequent speaker on bike-related legal stuff and has given his “BIKE LAW 101” class for lawyers and judges in Cleveland, Columbus, Dayton and Cincinnati.

Steve also sits on the Board of Trustees of the Ohio Bicycle Federation and regularly publishes articles on the legal aspects of cycling. Steve co-authored “Bicycling and the Law” with Olympic-cyclist-turned-lawyer, Bob Mionske and was a contributor to “Bicycle Accident Reconstruction & Litigation” by James Green.

Steve’s practice stretches throughout Ohio and he has represented cyclists in every corner of Ohio– from Cincinnati to Cleveland – Columbus to Portsmouth – Bellefontaine to Marietta – Toledo to Youngstown – Mansfield – Springfield – Akron – Canton – Ironton- Findlay – Lorain – Springfield and many more.

Steve continues to blow his trumpet daily and can be heard with a contemporary jazz group, ModernGroove, a classic music venues around Cincinnati.

Mason, Ohio Cops CLEARED in Taser Death

Wednesday 27 Jan 2010 by Steve Magas | 5 Comments

MASON COPS CLEARED IN TASER DEATH

In Mason, Ohio, two officers were confronted with a tough choice in dealing with a struggling man on December 14. They ended up TASER-ing him, and he ended up dead.

The original story on Channel 5’s website can be viewed here. I’ve reprinted below. The latest development is that the two officers have been “cleared” by the prosecutor of any wrong doing – criminal mischief, I suppose. I’m sure a civil rights case will follow. The article on cincinnati.com is also posted below or you can read it here.

I’ve been posting a lot of TASER stuff since becoming involved in Tony Patrick’s civil rights case against the officers who TASER-ed him for riding his bicycle on the roadway. More on that case in a later post. For now, here are the two stories about the Mason Taser death.

—–From WLWT- Channel 5’s Webpage—–

Posted 12/14/2009 by

A man died Sunday night after Mason police shocked him with a Taser stun gun, officers said.

Investigators said 39-year-old Douglas Boucher had gone to Speedway gas station Saturday night and verbally attacked a cashier, and returned again the following evening and began yelling at her again.

Officers happened to walk into the Reading Road gas station around 11:15 p.m. as Boucher yelled obscene requests at the woman, 20-year-old Christina Hicks, and she asked them to escort him outside.

“He verbally accosted Miss Hicks and in a profane manner, sexual requests being made in profane terms,” said Chief Mike Kelly, of Mason police.

Police said Boucher, who was suspected of being involved in a hit-and-run crash earlier Sunday evening, refused to cooperate and began fighting with officers as they attempted to handcuff him outside.

“The officer attempted to control him by cuffing his wrists,” Kelly said. “In the process, with only one cuff on, Mr. Boucher wrestled away from the officer and struck him in the head with his cuffed hand.”

Boucher then attempted to chase Hicks, police said, and an officer fired the electronic stun gun at him.

Moments later, police said, Boucher stopped breathing and then was rushed to West Chester Medical Center, where he died.

The officer who was hit in the head was taken to Bethesda North Hospital for evaluation, and he was treated and released.

The Warren County coroner said autopsy results were incomplete, and a cause of death would not be determined until toxicology, microscopic and X-ray screens results were available in several weeks.

Both officers involved, Patrolman Daniel Fry and Patrolman Sean McCormick, have been placed on administrative leave during the investigation, which is standard procedure.

Boucher played bass in several area bands, including Hellcat Alley, and is survived by an 8-year-old daughter.

“He was a very passionate person — passionate about his daughter, his music and living life fully,” said his ex-wife, Sheryl Olszewski.

Friends say Boucher was in poor health when he played his last show less than 24 hours before he died.

“I’m just pretty shocked about the whole thing and hearing it just because of the character I know him to be,” band member Kevin Conner said.

Increased Scrutiny

It’s the first local Taser death since Kevin Piskura died after being Tasered by Oxford police last year. The city responded by taking Tasers off the streets.

The coroner later ruled a heart problem and excessive alcohol use combined with the Taser to kill the Chicago man.

After months of study, the city manager has decided to give Tasers back to Oxford officers in January. On the conditions they have additional training and tighter restrictions on when they can be used.

“Anytime you use force there is a possibility injuries can occur. So you try to use the least amount of force to affect that arrest,” Oxford City Manager Douglas Elliott said.

The Mason police chief said there are no plans to take Tasers away from his officers right now.

In 2008, the National Institute of Justice said studies show use of shock devices is not risk free, but exposure is safe in the vast majority of cases.

—–From CINCINNATI.COM———-

Posted 1/27/2009

MASON – Two Mason police officers have been cleared of any wrongdoing in the death of a man who fell and died of a skull fracture after police shot him with a Taser in December.

Warren County Prosecutor Rachel Hutzel determined that a state investigation and evidence in the death of Douglas Boucher of Mason indicate that Officers Daniel Fry and Sean McCormick did not commit a criminal act during the Dec. 13 incident.

In a letter to Mason police dated Jan. 22, Hutzel said her office was closing the case.

Police alleged that Boucher, 39, ran his vehicle into a parked car at his apartment complex, then drove about a mile to the Speedway gas station at Tylersville Road and U.S. 42, where he was harassing a female clerk.

When police arrived because of the disturbance, they said Boucher refused to leave the store and struggled with them.

Boucher was struck with the stun gun after he tried to go after the clerk and hit an officer with a cuffed hand, officials said.

EVER WANTED TO RIDE CROSS COUNTRY?

Wednesday 27 Jan 2010 by Steve Magas | No Comments

If you’ve ever wondered what a cross country ride would be like, check out this YouTube video.

The rider, Bret Taylor, apparently had a handlebar-mounted camera that snapped pix along the way. He set up a six minute slide show of the ride, with a great soundtrack, and put it out there for the world to see. Its’ VERY cool! Makes you wonder where those hundreds of millions of people are living!

The route he took was The TransAmerica Trail. Adventure Cycling put the route together and sells the maps as part of its Adventure Cycling Maps collection. You can buy all or part of the route.

The route goes from Virginia to Oregon along a well-researched path that takes you through Kentucky, over the Mississippi at Chester, Illinois, and into Missouri, Kansas and Colorado before heading north. You’ll crest the Continental Divide at the Hoosier Pass and head down towards Yellowstone before passing through Adventure Cycling’s headquarters in Missoula, Montana on your way to the west coast. Make sure to stop in and have Greg Siple take your picture!

Apparently, Bret Taylor did well – he raised $25,000 for the fight against M.S. Congratulations! What a cool thing!!

COURT SAYS COPS CAN’T USE TASERS LIKE CATTLE PRODS

Tuesday 26 Jan 2010 by Steve Magas | 1 Comment

NEW TASER CASE SAYS COPS CAN’T USE TASERS LIKE CATTLE PRODS

{or words to that effect…}

The U.S. 9th Circuit Court of Appeals came out with a Taser ruling that has everyone talking. In the case, a police officer stopped a man for a seat belt violation. While the facts are somewhat disputed, the officer ended up Tasering the young man while he was standing 20 feet away. The young man was unarmed and acting weirdly, but not dangerously, and was not threatening the officer in any way.

Folks are beginning to weigh in on what is perceived to be the impact of this important case. From Taser.com, we learn that the case really doesn’t change anything or say anything new. You can read the article on Taser.com’s blog here.

Others think the case is far more significant. Below is an article from WIREDmagazine which discusses the case and concludes that the case stands for the proposition that officers can no longer use Tasers simply as a behavior modification device to get people to do what they want.

I agree with Wired’s analysis. A Taser is not a cattle prod designed to keep people moving in the direction police want them to move. Rather, it is a substantial, painful, dangerous weapon that is a step below deadly force but more significant than a baton or the old “rubber hose!” The court found that a Taser produces both psychological and physical pain when the barbs hit and the juice is delivered to the body of the target.

Here’s the WIRED article…

The use of Tasers has become increasingly controversial over the last year, following high-profile cases such as the Tasering of a 10-year-old girl who had refused to take a shower and video of a 72-year-old great-grandmother who was Tasered following a driving offense. Now a federal appeals court in San Francisco has set down new rules for when police officers are allowed to use Tasers. In particular, the 9th U.S. Circuit Court of Appeals ruled that Tasers can’t be used simply to force a non-violent person to bend to an officer’s will. The court’s reason was that Taser’s X26 stun gun inflicts more pain than other “non-lethal” options:

The physiological effects, the high levels of pain, and foreseeable risk of physical injury lead us to conclude that the X26 and similar devices are a greater intrusion than other non-lethal methods of force we have confronted.

The ruling followed a case in which an officer Tasered a man named Carl Bryan after pulling him over for driving with an unbuckled seat belt. Bryan was verbally abusive, but obviously unarmed and non-violent.

The use of Tasers as compliance tools — means for compelling behavior — has generated a huge amount of protest. For many, the famous “Don’t Tase me, bro” incident, in which student Andrew Meyer was Tasered at a political debate, signaled an alarming new form of oppression. (Others have accused Meyer of setting the whole thing up as a stunt.) Perhaps the distinguishing feature of the Taser, compared with other forms of enforcing compliance, is that it can be used with one finger. Police have always been able enforce their wishes using batons or manual force, but a Taser is a much easier option, and perhaps this makes it more prone to abuse. Whether it’s zapping an unruly student protester, an uncooperative 11-year-old or an abusive driver, the trite observation that power corrupts may have some truth here.

“It sounds like this court is attempting to raise the bar for non-lethal use of force,” retired Los Angeles Police Department Captain Greg Meyer told the Los Angeles Times. The ruling specifies that the Taser X26 and similar devices should only be used where there is “strong government interest [that] compels the employment of such force.” This rules out any situation in which there are alternative means of dealing with the situation. Some may see the new ruling as a great step forward for human rights. But there are reasons to be a little more cautious.

A recent study in the American Journal of Public Health looked at 24,000 cases in which police officers had used force, including Tasers, pepper spray, batons and manual methods. After controlling for factors such as the amount of resistance shown by the suspect, the study found that Taser use reduced the overall risk of injury by 65 percent. In other words, restricting Taser use could triple the number of injuries caused in this sort of incident.

It would be naïve to assume that there will not be any market response to the ruling. We have recently seen a rash of new devices aimed at police forces, including assorted laser dazzlers and pepper ball guns as Taser alternatives. There are also portable pain beams in prospect, both microwave and infrared laser varieties, not to mention various acoustic blasters. The ruling is likely to lead to more experimentation, both technical and in the courts, to find out just what the acceptable level of pain and suffering is and how it can best be delivered.

The ruling is also a potential boost for devices such as the LED Incapacitator, which does not rely on pain but other physiological effects (disorientation, loss of balance and nausea). Funding of more advanced non-lethal devices using assorted electromagnetic effects to paralyze or otherwise disable painlessly may also become more attractive.

Taser International is also likely to respond legally and technically. Having already developed several generations of Taser, the latest versions rely on muscular paralysis to incapacitate a target. The substantial pain is a side effect. A Taser that paralyzes without causing (perceived) pain would be an obvious avenue of research.

The new ruling is likely to have a significant effect on police on the streets. Many commentators will be watching evidence to support claims that it will make things better — or worse.

DISTRACTION – The New Alcohol

Monday 25 Jan 2010 by Steve Magas | 6 Comments

Distraction is becoming the new alcohol.

You know it’s big when the head honcho of the biggest transportation agency in the country is on board. Is the scientific evidence supporting the anecdotal evidence? Is “TWD” [Texting While Driving] as bad as “DUI?”

Ray LaHood is the United States Transportation Secretary. On September 30,2009, he kicked off a Distracted Driving Summit in D.C. with the statement that “…distracted driving is a menace to society.” He noted that every time you take your eyes off the road, even for a second or two, you put others in danger with your “irresponsible” behavior.

The D.O.T. is the latest group on the Distracted Driving bandwagon. Those of us who ride motorcycles and bicycles on the roadway regularly see it all the time. If I am riding downtown to court at 8:00 am, I would conservatively estimate that 1 out of 3 drivers are doing something other than driving – talking, texting, reading the paper, doing their eyes, or hair or nails, yelling at kids in the backseat. It’s almost like people think “Driving is so easy I can do it with my eyes closed…”

“Distracted” driving clearly means more than “texting” but LaHood singled out the many uses of cell phones in his remarks. “Texting” is a big one, of course, and LaHood pointed out that many of our country’s “best” texters are our youngest, and most inexperienced drivers.

Texting is only one aspect of electronic device usage we see in cars. Folks use their Blackberrys and other “smart” phones to do dumb things while driving – like searching for songs on the Ipod, adding their last caller to their “Contacts” or trying to use the internet feature to find the address of their next destination on Google.

LaHood pointed out that in California, a train operator was “so busy texting a friend” that he failed to stop at a red signal, causing one of the worst train passenger train crashes in many years, killing 25 people and injuring 135 more. In New York, a tow truck operator ended up crashing through a fence, sideswiping a house and driving into a swimming pool as the result of “TWD” – texting while driving.

Texting, specifically, has come under fire in several communities in Ohio. According to “handsfreeinfo.com” the cities of Cleveland, Toledo and North Royalton as well as Summit County have passed some form of texting laws. You can read about it here. In addition, state legislators have no less than SIX bills percolating right now which might impact texting or other distracted driving issues.

NEW YORK TIMES STORY – “Driven to Distraction”

The New York Times reported, on January 6, 2010, that car companies are now getting into the act. Not satisfied with their current level of displays, many car companies are showing up shiny new digital gadgets on the dashboard that will allow drivers to surf the internet while driving. Ain’t that just grand? The article, entitled “Driven To Distraction,” notes the concerns of safety advocates about the impact of these “infotainment” systems on one’s ability to drive down the road without killing anyone.

In one system, you can open a screen while driving, say to the Bearcats basketball game, and scribble ‘Bearcats’ on the screen with your finger – um… did I say, “while driving?” The system will bring up information about restaurants, parking, maps, and, I am certain, bars where you can grab a few drinks before driving home!

According to one safety researcher, the longer you look at something OTHER than the road in front of you, the risk of a crash goes up – exponentially. “Not linearly, exponentially.” The risk of a motorist causing a crash, of killing a cyclist or motorcycle operator, goes up significantly every second the operator’s attention is diverted from actually operating the machine.

Can you imagine a punch press operator with a TV set or Computer screen in front of him. One second of distraction can cause the operator of such equipment to lose a hand or an arm. If a hunter is distracted by trying to read a GPS while aiming the weapon and pulling the trigger, do you think his risk of hitting something other than an animal increases?

Until government looks at MOTOR VEHICLES the same way it looks at guns and other DANGEROUS equipment we are going to have government creating, accepting and failing to punish some sort of “acceptable” level of distraction which leads to maiming or killing others.

2001 Study by AAA Foundation for Traffic Safety

Think back to 2001. How many of you had cell phones? Quite a few. How many had PDA’s, “smart phones,” the ability to look up stuff on the internet while driving, the ability to text, the ability to update your Facebook status while driving, the ability to open your email while driving, the ability to open FAXES on your phone while driving? Suffice it to say that the distraction landscape has changed significantly since 2001, eh?

Well, in 2001, the AAA Foundation for Traffic Safety was awarded a grant to study “distraction.” At THAT time, NHTSA estimated that 25% of all police-investigated crashes involved some type of distraction. In 2001, they estimated that only 1.5% of the distraction cases involved cell phone dialing. There wasn’t even a category for “texting.” One haunting sentence reads :”…as roads grow more congested and the demands on drivers increase, it seems likely that new in-vehicle technologies will add even more potential distracters…”

So now, in 2010, we have more cars, more congestion, more activities to drive to, less time to get it all done and more distractions.

2008 Study – UK Transport Research Laboratory

In 2008 the United Kingdom’s Transport Research Laboratory [TRL] conducted research on “texting whilst driving.” The 64 page report is available for free on the TRL website. They tried to test the impact of texting on driving. They concluded that texting makes it harder to drive… duh…

The TRL study went further, of course, and attempted to put some numbers to their conclusion. In the 17-25 year old age group, which consisted of people who described themselves as “regular” texters, TRL found that texting while driving significantly impaired reaction times and made it difficult for the texting motorists to keep their vehicles within the lane lines. At speed, the texters would travel a MILE while texting while the increased reaction time made for longer stopping distances, and made crashing far more likely.

Texters were also less able to maintain a constant distance behind the vehicle ahead of them and showed “increased variety in lateral lane position” – a fancy way of saying they couldn’t drive in a straight line. Reading text messages resulted in a lesser impact on driving that composing text messages.

Texting was viewed as impairing driving skills more than alcohol and cannibis/pot! One researcher felt that this result might be explained by considering that drunk/high motorists are TRYING to steer the vehicles while TRYING to see the road, but are impaired and lack muscle coordination or the ability to keep the vehicles on the roadway. Texters, however, are not even looking at the road – their hands are off the wheel and they are locked in concentration on something which completely prevents them from focusing on driving.

All of this data, of course, was apparently ignored by the carmakers and tech-device manufacturers as they continue to develop more and more ways to seduce the motor vehicle operator into taking his/her eyes off the road…

BE SAFE!

Motorist Honks at Cop on Bike

Friday 22 Jan 2010 by Steve Magas | No Comments

Check out this blog posting from Orlando, and the accompanying video. It chronicles what happens when an upset motorist honks at cyclists… and then discovers the lead rider is a bike cop….

Check it out here…

Uncategorized

CYCLISTS OUTRAGED AS POP SINGER ARRESTED FOR KILLING CYCLIST & FLEEING SCENE

Tuesday 19 Jan 2010 by Steve Magas | No Comments

THIS JUST IN FROM THE MIAMI NEW TIMES – POP SINGER CHARGED WITH DUI IN KILLING CYCLIST –

Carlos Bertonatti, a Sony recording artist, was arrested after a short police chase. Bertonatti is suspected of driving his Volkswagen into cyclist Christopher Lecanne, and killing him in Key Biscayne, Florida.

Police Officers claim Bertonatti was driving while intoxicated or impaired when he slammed into Lecanne and then sped away with Lecanne’s bike lodged under his front fender. He left the cyclist bleeding to death on the side of the road.

Here’s what police are saying:

Just before 8:10 a.m., Lecanne was riding his bicycle in the eastbound bike lane on Bear Cut Bridge, the last link on the Rickenbacker Causeway before Key Biscayne. Bertonatti was driving eastbound as well when he swerved into the bike lane and slammed into Lecanne. After clobbering Lecanne, Bertonatti kept speeding east with Lecanne’s bike lodged under his car, according to a spokeswoman for the Miami-Dade Police Department.

Finally, the singer stopped on the 600 block of Grapetree Drive, near the posh apartment where he’s listed as a resident. Police arrested him on the spot.

via Miami-Dade Police Department

Bertonatti’s mug shot after his arrest on Sunday.

In addition to the DUI, cyclists are upset about the response time of fire and rescue personnel. There are claims that it took as long as 30 minutes for someone to arrive – claims which are disputed by police and fire departments. .UPDATE 2: A cyclist who claims to have witnessed the accident has written a first-hand account about what he saw on a bike forum. You can read the whole passage here.

From a few other sources:

– NBC – Drunk Singer Killed Cyclist & Fled Scene

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