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)
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)
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