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Bob Mionske blog: when judges rule against you

When The Law Doesn't Say What The Court
Thinks It Should Say...

Posted At : December 9, 2009 6:24 PM | Posted By : Rick Bernardi

In a companion piece to this article, I posed this scenario:
Imagine you’re driving your car on a road with multiple lanes.
You’re in the right lane, and for some reason, the lane to the left of
you backs up, and traffic stops. No problem, your lane is still open,
so you continue driving, passing all of the cars stopped in the lane
to your left.
Then you see the lights in your rearview mirror—you’re pulled over
by a law enforcement officer, who issues you a citation for passing
on the right. Later, in traffic court, you explain to the Judge that
traffic in the lane to your left was stopped, while your lane was
open, and that is why you were passing on the right. Despite your
defense, the Judge decides that you were in violation of the law,
and tells you that you should have either merged into the left lane,
or stopped in your lane and waited for traffic in the left lane to
begin moving again.
An absurd interpretation of the law? Absolutely. The decision is not
only contrary to what the law actually says, it also leads to a result
so absurd that any Judge should realize that it is obviously not the
law.
Now imagine that you’re on a bike.
Now, let’s imagine a slightly different scenario. Suppose that you’re driving
your car on a road with multiple lanes, and the lane to your right is backed
up with stopped traffic. You pass this stalled traffic on the left, as the law
generally requires. And this time, a law enforcement officer pulls you over
and cites you for passing on the left.
Surely the Judge will understand that under state law, you are generally
allowed—required, even—to pass on the left. But when you get to Court, the
Judge insists that you should have passed all the other traffic on the right.
Well, you know that generally that is not the law.
Now imagine—again—that you’re on a bike.
What gives? First you can’t pass on the right, and now you can’t pass on the
left? Is there any situation in which you can pass?
Bob Mionske's Blog on Bicycle Law and Advocacy: When The Law Doesn't Say What The Court Thinks It Should Say...
As I noted in the companion post on this issue, a cyclist in Logan, Utah was
convicted this month on a misdemeanor charge of improper passing on the
right of a vehicle. A few months before, in August, a cyclist in San Diego,
California who passed a lane of traffic on the left was convicted for the
infraction of not riding as close to the right as practicable. This case is a
mirror image of the case in Utah, and like the Court in Utah, the California
Court got the law wrong on several points.
Let’s take a look at what happened to see why.
In March of this year, cyclist Andrew Woolley was stopped by a San Diego
police officer, who observed Woolley passing between two lanes of traffic that
had stopped. The officer later testified that Woolley was splitting the lanes,
riding on the broken white line between the lanes; Woolley disagreed,
testifying that he had in fact been riding within the right lane, to the left of
the automobiles in his lane that were stalled in traffic. Regardless of where he
was riding, Woolley was cited for a violation of the statute requiring him to
ride as close to the right as practicable.
Now, before we get to the statute which Woolley was charged with violating,
let’s touch upon this issue of lane splitting—is that legal in California? The law
is not explicit on this point. It is not prohibited in California, so it should be
legal. Furthermore, California law implicitly contemplates that motor vehicles
and bicycles will share the same lane when conditions permit. And finally,
California explicitly allows motorcycles to split lanes. Considered in context, it
is clear that lane-splitting is legal for cyclists in California.
However, Woolley was not cited for lane-splitting; instead, he was cited for
not riding as close to the right as practicable. So a good starting place for
this discussion is to examine what the California statute requires.
In California, as in other states, the general rule is that cyclists are required
to ride as close as “practicable” to the right. This means that they must ride
as close to the right “as can reasonably be accomplished under the
circumstances.” Another way to think of this is that the statute is saying you
must ride as close to the right as is reasonably safe. This is the general rule.
However, as is always the case, when you have a general rule, there will be
exceptions to the rule. And in California, there are a number of exceptions.
The first exception is that the general rule is only applicable when the cyclist
is traveling at “less than the normal speed of traffic moving in the same
direction at that time.”
That’s a pretty specific exception—it doesn’t mean some theoretical speed of
traffic, it doesn’t mean the maximum speed of traffic, and it doesn’t mean
the speed of the fastest vehicle on the road. It means the actual speed of
traffic at that time and place.
And in this case, traffic was heavily backed up and slowly creeping forward.
But Woolley was not creeping forward; because he was sharing the lane with
motor vehicles, rather than taking the lane, he was traveling at a higher rate
of speed. That should have been the end of it—under California law, Woolley
was not required to ride as close as practicable to the right.
But the Judge wasn’t applying California law. Instead, he was applying his
Bob Mionske's Blog on Bicycle Law and Advocacy: When The Law Doesn't Say What The Court Thinks It Should Say...
personal opinion of what the law should be. Instead of asking whether
Woolley was traveling, as the law specifies, at a speed less than the normal
speed of traffic moving in the same direction at that time,” the Judge asked a
different question of the officer:
The Çourt: “What is the speed limit on that—posted on the street?”
Officer: “Thirty-five, Your Honor.”
Woolley: “The normal speed of traffic was not 35 as he stated. It
was…”
The Court: “No, I asked…”
Woolley: “The speed limit”
The Court: “I asked him what the posted speed limit is.”
Given that the speed limit is irrelevant in determining the “normal speed of
traffic moving in the same direction at that time,” it is clear that the Judge
was throwing out the law, and substituting his own personal opinion of what
the law should be. And because Woolley was not traveling at the speed limit,
the Court found that he was required to ride as close as practicable to the
right.
So, aside from the fact that under California law, he was not required to do
so, why didn’t Woolley just ride as close as practicable to the right? Because
as Woolley noted,
I was on the right-hand side, saw the cars backing up, and knowing
where the safest place for a bicycle to ride is to the left of cars
making a right-hand turn.
In other words, Woolley was choosing not to ride to the right of the cars he
was passing, because he was approaching an intersection where some of
those cars were turning right. Under California law, Woolley’s choice on lane
position was lawful, because another one of the exceptions to the
requirement to ride as close as practicable to the right is “when approaching
a place where a right turn is authorized.” By the Officer’s own testimony,
Woolley was approaching an intersection:
I was approaching 44th Street. I was a couple -- three or four car
lengths back from the intersection of 44th Street that goes north off
of El Cajon Boulevard…As I was creeping my way through traffic,
traffic was backed up in both lanes. The Defendant pedaled by me
on his bicycle between the number-1 and the number-2 lanes of
traffic, between the cars in this lane and this lane (indicating). He
pedaled right past me right here and was pedaling down the center
of the roadway, right along the dotted line.
So according to the Officer, Woolley was three or four car lengths away from
an intersection—in other words, he was approaching a place where a right
turn is authorized—as he was riding to the left of the vehicles in the right
lane…Exactly where California law says he can be.
Bob Mionske's Blog on Bicycle Law and Advocacy: When The Law Doesn't Say What The Court Thinks It Should Say...
Now, just to be clear on this point, California law does not say that a cyclist
can travel in any lane simply because there is a right turn authorized
somewhere along the road. The law is very specific—a cyclist is not required
to ride as close as practicable to the right when approaching a place where a
right turn is authorized. This means that although a cyclist is generally
required to ride as close as practicable to the right, that requirement is not in
effect when the cyclist is approaching a place where a right turn is
authorized. This exception to the rule is intended to allow cyclists to make
reasonable decisions about their safety at intersections and driveways, in
order to avoid being right-hooked.
So what does “approaching” mean? The law isn’t specific, but a reasonable
reading of the law would be 200 feet before an intersection or driveway. Why
200 feet? Because under California law, motorists are permitted to enter a
bicycle lane to prepare for a turn within 200 feet of an intersection. It stands
to reason, therefore, that at 200 feet, the cyclist is also approaching an
intersection. Thus, a reasonable reading of the law would be that 200 feet
before an intersection, motorists preparing to turn may enter a bicycle lane,
while cyclists continuing through the intersection may move left.
Of course, the Judge dispensed with California law altogether, explaining that
with regard to moving left when approaching a place where a right turn is
authorized, “I don't think it's appropriate.”
(cont)
 
(cont)

Now, the Court did not say that Woolley couldn’t pass traffic on the right.
Presumably, had he been traveling as close as practicable to the right, he
would not have been cited, nor convicted, for passing traffic on the right.
Well, presumably. After all, a Utah court did just reach the bizarre conclusion
that cyclists can not pass on the right. Nevertheless, the issue was not raised
in California, so we may presume that Woolley would not have been cited and
convicted simply for passing on the right.
But Woolley also argued that under California law, cyclists are not required to
ride to the right when overtaking and passing another bicycle or vehicle
proceeding in the same direction. And in fact, Woolley had been passing a line
of vehicles when the officer pulled him over; by passing those vehicles on the
left, Woolley was operating lawfully under California law. However, despite
what California law clearly allows, the Court didn’t see it that way. Asked for
an explanation, the Court replied
Sir, I am not going to argue with you. I have made a ruling.
And because the Judge was not basing his ruling on California law, as he is
required to do, silence was perhaps his wisest choice.

Link:
http://www.bicyclelaw.com/blog/inde...oesnt-Say-What-The-Court-Thinks-It-Should-Say
 
Having practiced law for over 13 years, especially in criminal matters and traffic offenses. I have seen the same illogic used by man sworn to adjudicate the law while claiming to uphold them. Thankfully, several of those judges were overturned on appeal, and were later, not voted to retain their seats.
 
Jul 23, 2009
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Marva32 said:
Having practiced law for over 13 years, especially in criminal matters and traffic offenses. I have seen the same illogic used by man sworn to adjudicate the law while claiming to uphold them. Thankfully, several of those judges were overturned on appeal, and were later, not voted to retain their seats.

Interesting take - I have almost never seen a judge lose his seat because he got overruled by the appellate courts where I practice. In my experience, the public does not seem to be aware, understand or care about local judges in general > they just look for the guy with the title judge behind his name.
 
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The way it is, has always been, and probabaly always will be for cyclists is that there are many legal and practical double standards for us.

On the road we must follo rules that pertain to automobiles and motorcycles.

On the sidewalk we must follow laws applicable to pedestrians.

Pass on this side is ok. Pass on that side isn't. Put a foot down at stop signs. Have a light at night, even on a sidewalk. Etc. etc. etc.

In reality, none of this stuff matters at all. It is all nonsense!

I have been ticketed many times while cycling. Sometimes for riding at night without a light, other times for running stop signs, once for carrying a passenger on my handlebars on a bike built for one, and once more for wearing a personal audio entertainment device while riding.

I pay my fines, don't whine about it, and go on enjoying my cycling.

The biggest threat we face isn't the law, it's the other commuters in their cars. I have lost seven friends through the years to bike vs. car accidents. Most of them were on country roads while training for endurance rather than commuting, but the fact remains that cyclists generally lose in the car vs. bike collision.

Until the infrastructure exists to sequester cyclists from other forms of commuter these problems will persist.

In the mean time, smart commuters will choose the roads less traveled, wear bright colors, be well lit, and always be on the lookout for motorists (including those law enforcement officers sworn to keep the roads safe for us all).
 
CentralCaliBike said:
Interesting take - I have almost never seen a judge lose his seat because he got overruled by the appellate courts where I practice. In my experience, the public does not seem to be aware, understand or care about local judges in general > they just look for the guy with the title judge behind his name.


Well here in Crook, I mean Cook County, Illinois we are usually able to get the bad ones voted out after a few years. Surprisingly, people actually pay attention to what the Bar Association recommends, and it is the only area where political clout and 'The Machine' don't take over.:rolleyes:
 
David Suro said:
The way it is, has always been, and probabaly always will be for cyclists is that there are many legal and practical double standards for us.

On the road we must follo rules that pertain to automobiles and motorcycles.

On the sidewalk we must follow laws applicable to pedestrians.

Pass on this side is ok. Pass on that side isn't. Put a foot down at stop signs. Have a light at night, even on a sidewalk. Etc. etc. etc.

In reality, none of this stuff matters at all. It is all nonsense!

I have been ticketed many times while cycling. Sometimes for riding at night without a light, other times for running stop signs, once for carrying a passenger on my handlebars on a bike built for one, and once more for wearing a personal audio entertainment device while riding.

I pay my fines, don't whine about it, and go on enjoying my cycling.

The biggest threat we face isn't the law, it's the other commuters in their cars. I have lost seven friends through the years to bike vs. car accidents. Most of them were on country roads while training for endurance rather than commuting, but the fact remains that cyclists generally lose in the car vs. bike collision.

Until the infrastructure exists to sequester cyclists from other forms of commuter these problems will persist.

In the mean time, smart commuters will choose the roads less traveled, wear bright colors, be well lit, and always be on the lookout for motorists (including those law enforcement officers sworn to keep the roads safe for us all).

I am saddened by your post. Saddened because I know you really believe this, and because I know it's incorrect and full of misinformation.

While it is true that cyclists almost always lose in collisions with cars, and all too often it's their lives that they lose, there is far too little attention given to learning and sharing the techniques and practices that enable us to avoid those crashes in the first place, even those crashes caused by inattentive and careless motorists, techniques and practice that I'm convinced can reduce a given cyclist's chances of getting hit by at least one if not two orders of magnitude. Yes, I'm talking about 100 times less likely to get hit.

If you look at car-bike collision statistics, the story becomes all too obvious. Fully half of all car-bike fatalities unquestionably involve blatant stupid behavior on the part of the cyclist, like riding at night without lights, running red lights, riding on the wrong side of the street, etc.

While the other half of the crashes involve at least some motorist error, almost all of those could still have been avoided had the bicyclist been prudent. It's tempting to blame the motorists, I know, but that doesn't help you avoid getting hit. Flipping off the errant motorist with the middle finger of your severed arm does not get you to the hospital any faster, if you're not headed for the morgue already.

Sure, not all bike-crashes can be avoided by the bicyclist, but the vast, vast majority can. And accomplishing that starts by realizing it's true.

I will say just one more thing, about this one statement: "On the road we must follo rules that pertain to automobiles and motorcycles." No. On the road following rules that pertain to drivers of vehicles is an important aspect of how we protect ourselves. If you are a habitual law-follower, you are less likely to find yourself in a bind.

Put Cyclecraft by John Franklin on your holiday wishlist.
 
Geoff Whitehead said:
Hmmm. Ninety5rpm: Could you post these car-bike collision statistics? I do not believe your interpretation.
A great page on that is the one put together by Ken Kifer, who, ironically and tragically, was killed by a motorist, but in a very rare kind of crash in which the cyclist can actually do nothing to prevent it (the motorist was drunk, oncoming, and careened across the road into him).

Link:
http://www.kenkifer.com/bikepages/health/risks.htm

Key conclusion:
"the majority of cycling deaths occur to the minority who are not following such simple safety procedures as riding with the traffic, stopping for traffic lights and stop signs, and using lights at night."

That's consistent with my primary claim that over half of all bike crashes are caused by blatant cyclist error.

The other point, that the vast majority of crashes can be prevented by pre-emptive good practices, is simply the defensive driving principle applied to bicyclists, which is that almost all crashes could have been prevented had either party been operating defensively, and even if the other party, no matter how egregious their behavior, did nothing differently. In other words, in almost all crashes neither party was acting defensively. So it follows from that that anyone, including any cyclist, can avoid just about any crash, no matter the behavior of the other, by following prudent defensive practices. That's not to say that there aren't some rare situations (like the Ken Kifer tragedy) in which there truly was nothing to be done, but the likelihood of encountering such a situation is much, much lower than being involved in an avoidable crash.

Some examples of typical crash scenarios, most of which fall into the minority of crashes in which the motorist is technically at fault (you avoid the majority of crashes by avoiding the blatant cyclist error like riding at night without lights, riding on the wrong side of the road, running red lights, swerving in front of overtaking traffic, etc.) - and how they can be prevented.

* Cyclist is doored - Never ride in the door zone (yes, it can be done)
* Cyclist is hit by red light runner - never enter an intersection, even on green, without making sure it's clear
* Cyclist is left crossed - don't enter an intersection without making sure that oncoming traffic that can and might turn left into you, or in front of you, has noticed you - and no, "eye contact" is not sufficient evidence of being noticed)
* Cyclist is right hooked - Use caution when approaching any place where right turns are allowed (including driveways), always look back and check for potential right hooks. Negotiate for right of way as required and move left in most cases. Never pass anyone on the right who can and might turn right. Keep your front wheel behind the rear bumper of any car that just passed you and suddenly slows.
* Cyclist is right crossed - Move left (after negotiating for right of way as required) when approaching intersections (including those with driveways, not just streets!) so as to be more conspicuous to, and have more buffer/escape space from, those entering on your right.
* Cyclist is overlooked and sideswiped or hit from behind by overtaking motorist - During gaps in relatively light traffic when motorists are particularly prone to inattention, use a more conspicuous lane position, out in the traffic lane where you would ride a motorcycle, moving aside only after you've almost certainly been noticed, and only when safe and reasonable to do so. Be especially wary of riding in bike lanes and shoulders during such gaps.

Yes, you might still get injured or even killed in a fluke case like something flies off the back of a truck and hits you, or an oncoming motorist swerves into you, but if you do the above, along with avoiding the previously mentioned blatant errors, you are almost completely eliminating any chance of getting hit or killed in the type of car-bike crashes to which most cyclists who are hit fall victim.
 
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Ninety5rpm said:
Key conclusion:
"the majority of cycling deaths occur to the minority who are not following such simple safety procedures as riding with the traffic, stopping for traffic lights and stop signs, and using lights at night."

That's consistent with my primary claim that over half of all bike crashes are caused by blatant cyclist error.

No, that is not. Read the important part that is throwing your logic off: "...majority of cycling deaths occur..." He is saying deaths, not accidents. You are claiming "over half of all bike crashes are caused by blatant cyclist error." Big difference.

In fact, if you read the studies he links to, about 20% of cycling accidents are caused by cyclist error. He lists the percentages on his page from a study of 5 states under the title "The Most Common Cause of Cycling Fatalities." Do the math. One study he cites.

Logic is not your enemy!