Legal Defense of Cyclists

by Fred Oswald, LCI #947

This article is intended to provide help for cyclists wrongly prosecuted for what should be legal operation of a bicycle.  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.

  1. Police, judges and others do not understand proper cycling methods but instead believe the superstition that it is "dangerous" to ride on the road.  They also believe that cyclists' greatest duty is "staying out of the way" of more important motorists.
  2. 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.

We do not condone rogue cyclists.  A cycling newsgroup 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 technique.  Study John Forester's books Effective Cycling and Bicycle Transportation John Allen's booklet Street Smarts and John Franklin's Cyclecraft.  (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 the pdf file Summary of Ohio Traffic Laws for Bicycles.  In addition, 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".

Ohio cyclists can find more detailed information about relevant traffic laws in Digest of Ohio Bicycle Traffic Laws.

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.

Be aware than many police officers do not take kindly to a citizen knowing enough about traffic laws to point out the officer's mistakes.  It is hard to do this tactfully during a stressful situation at the side of the road.  It may be better to try to do as the officer says and then complain to the chief later to avoid getting a "contempt of cop" ticket.

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 --- lots of 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 post messages on cycling lists to generate 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 not.  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.  Ask your state's "bicycle coordinator" to 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 Smart Cycling 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 the Bicycle Driver's Seminar (pdf file).  These are based on the book Bicycle Transportation by John Forester.  The expert can also explain that the crash rate for experienced cyclists is 75-80 percent lower than the average bicycling accident rate and that you (the defendant) operate according with the best practices of experienced cyclists.

Be aware that if you did violate the rules of the road that a Smart Cycling instructor is likely to tell you that you are in the wrong and that you should pay your fine.

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.  Most states have some version of this rule.

Note that these "exceptions" are really clarification for actons that are not "practicable".  It is hardly practicable to make a left turn from the right edge of the road.  Neither is it practicable to ride through road hazards (or to abruptly swerve around them) or to encourage unsafe passing by riding in the gutter in a narrow lane or to travel straight in a right turn lane.

Some states 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 showing roads too narrow for lane-sharing.  (A similar illustration is included in the Seminar mentioned above.)  See also accounts of actual court cases in Bicycle "Right to the Road" Cases.

Look for any other information from your own state that supports operation of bicycles under the standard "rules of the road".  For example, 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 recommended usable lane width for shared use between bicycles and motor vehicles is 14 feet.  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 explain thoroughly 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 a safety issue relates in any way to your case, you must insist on being allowed to educate the court about the real bike safety issues.

If there is testimony claiming that you would have "caused an accident" because you were in the way, point out that motorists have the duty to drive at a speed that permits stopping within the "assurred clear distance ahead".  Most states have a version of the UVC "Basic Speed Rule," § 11-801.

§ 11-801  No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions, including actual and potential hazards then existing.  Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching the crest of a hill, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

The Basic Rule means not hitting something stopped, such as an elderly person who has fallen in the road.  Stopping or steering around a moving bicycle is much easier than avoiding a stopped object.

It might help to explain why you need to ride assertively and not docilely.  If you ride at the edge of the road, many approaching motorists will assume they have room to pass within the lane.  When they get close, they realize that space is closer than they had thought.  This leads some to swerve abruptly, which can cause a collision with traffic in the adjacent lane or they make brake suddenly, which can cause a rear-end collision.  Of course, you, the cyclist are at the greatest risk.

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 wish to appeal to a higher court.  However, you must establish the basis of an appeal during the initial trial.  If you do not mention something there, you may 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 or "no contest" and pay a (hopefully) 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).  A child had recently been hit on that road and police were apparently instructed to crack down.

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 knowledgable and forceful expert witness.

Some of these issues include:


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.  Other expert sources include the Effective Cycling Instructor's 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 although some parts of these encourage less-safe practices.

(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, Florida, Arizona, Idaho and California.

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://bikelaws.org/bikelaw.htm

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


© Copyright 2002-2009 Fred Oswald and Bicycle Law Reform.
Material may be copied with attribution.
Disclaimer:  The author is an engineer, cyclist and "League Cycling Instructor", but not an attorney.
For comments or questions, contact fredoswald_AT_yahoo_DOT_com.
Check for updates at http://bikelaws.org/
revised 6 Sep 2010

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