Oregon Bicycle Helmet Laws: Your Rights and Duties

 Bicycle helmets have been in the news lately. Last month, Bike Law Illinois attorney Brendan Kevenides reported that an Illinois case may have some potential to hold Illinois cyclists liable for their own head injuries if they are hit by a car and are not wearing a helmet. The day before that report came out, a study was released which, among other things, suggested that two-thirds of all bicycling fatalities involved cyclists who were not wearing a helmet. Among the study’s recommendations was the adoption by the states of mandatory helmet laws (For an explanation of why the study was wrong, see Lies, Damned Lies, and Statistics).

With these two recent developments in mind, let’s take a look at what the law in Oregon says about bicycle helmets. Oregon has four separate statutes regarding bicycle helmets. These statutes lay out the legal rights and duties of Oregon cyclists with regard to bicycle helmets.

Oregon Bicycle Accident Lawyer

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The Bike Law Interview: Amy Benner, Bike Law Tennessee

By Bob Mionske

Over the years, I’ve written a number of times about incidents in Tennessee. In 2009, there was the crash that killed David Meek, a well-known and popular Chattanooga cyclist. The morning of March 5, 2009, Meek was commuting to work when he was sideswiped by a passing truck, and thrown under the wheels. He was taken by ambulance to a hospital, where he succumbed to his injuries. Although Tennessee has a 3-foot safe passing law on the books, the traffic investigator invented an imaginary standard for safe passing that let the inattentive driver who had sideswiped Meek—“he never saw” Meek, even though Meek had been “lit up like a Christmas tree”—off the hook for Meek’s death.

Three weeks later, Ed Rusk, another Hamilton County cyclist, was deliberately buzzed and hit by a driver towing a trailer. And yet the Hamilton County Sheriff’s Deputy responding to the incident said that he couldn’t ticket the driver because the driver didn’t know about the 3-foot passing law.

And when the Deputy completed the accident report, he wrote that there was no evidence that the trailer had come into contact with Rusk. Even an eyewitness statement corroborating Rusk’s account of the collision was left out of the accident report. Thus, despite having deliberately hit a cyclist, the driver was not charged with any violation.

Nevertheless, several officials, including then-Tennessee Governor Phil Bredesen, then-Chattanooga Mayor Ron Littlefield, and then-Hamilton County Sheriff’s Public Information Officer Dusty Stokes had all announced their support of enforcing the 3 foot passing law.

Then, two years ago, Gary Hooper, another Chattanooga-area cyclist, was buzzed and run off the road by a car that passed within inches of his bike. A Chattanooga Bicycle Club member got the car’s license plate number, but when the incident was reported to the Red Bank Police Department, the cyclists were told that nothing could be done because the car hadn’t actually made contact with Hooper.

And in January of this year, another Chattanooga-area cyclist was assaulted in an incident that garnered the attention of cyclists nation-wide. After first repeatedly buzzing the cyclist, two local teens returned to the scene and assaulted him with pepper spray. But when the cyclist reported the assault, the tables were turned on him, with a Marion County Sheriff’s Sergeant accusing him of committing a felony by violating an imaginary law. The County prosecutor continued with the Kafkaesque turn of events by investigating the cyclist for assaulting the teens who had pepper sprayed him. Eventually, the truth came out, and the two teens were convicted, but that may be more a testament to the power of video evidence and social media than to the willingness of local law enforcement to take crimes against cyclists seriously (note, however, that the Chattanooga Police Department DID take the buzzing and assault very seriously, and would have charged the culprits if the incident had happened within their jurisdiction).

Taken together, all of these incidents suggest a law-enforcement culture that winks at drivers who endanger, assault, and even kill cyclists.

But the story is not that simple.

Chattanooga has made great strides in becoming a bicycle-friendly community, and the Chattanooga Police department has garnered a national reputation as a bicycle-friendly police force. And Memphis is also developing a national reputation on its way to becoming a great bicycle city

Clearly, the narrative coming from Tennessee is complex, and evolving. Recently, I had the opportunity to chat with Tennessee bicycle accident attorney Amy Benner about the state of cycling in Tennessee.

Amy Benner  

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Bob Mionske on the 3-Foot Law

This news article featuring Bob Mionske has been reproduced here for our archives. To access the original article, follow the link.

Slowtwitch: Bob Mionske on the 3-foot law

Written by: Dan Empfield
Date: Tue Nov 04 2014

The narrative on our reader forum last week troubled me. Taken at face value it seemed a California Highway Patrol officer predisposed against cyclists interpreted the state's new 3-foot law as a way to take it out on a cohort he doesn't like. Of course, there may be more to the story (there often is). Happily, if this officer is cyclist-averse, he's likely in the small minority. I interviewed the CHP about this incident and about California's 3-foot law in general.

Then I turned to Bob Mionske for his take. Bob is an Olympic cyclist and the dean of bicycle accident attorneys. More than that, he's an expert on the rights of cyclists under the law. While California is not a state in which Mr. Mionske practices he's well acquainted with the elements of California's Motor Vehicle Code pertaining to cyclists.

SLOWTWITCH: With the advent of the 3-foot minimum buffer afforded bicyclists by a motorist when passing, a conflict created by the vehicle code can arise, and arose via a citation written in a rural part of San Diego County last week. When the Legislature passed the new 3-foot law there was no corresponding modification of Vehicle Code Section 21460, which restricts motorists from crossing a double yellow. My question: If, on a rural 2-lane road, an officer gives a motorist a citation for part of the vehicle crossing the double yellow in order to grant the cyclist room, assuming there was clearly sufficient room to do so without peril from an oncoming vehicle, what is the likeliest scenario in a courtroom if the motorist decides to contest this citation?

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BicycleLaw.com Updates for November 04, 2014

Road Rights:

Road Rights: Taking on the Bullies
By Bob Mionske Cheryl, a former client of mine, was riding one of her regular routes, one she had ridden probabl...
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Lies, Damned Lies, and Statistics

By Rick Bernardi

"Figures often beguile me, particularly when I have the arranging of them myself; in which case the remark attributed to Disraeli would often apply with justice and force: 'There are three kinds of lies: lies, damned lies, and statistics.'"

- Mark Twain


Monday morning began this week with a bang, as a new study on Bicyclist Safety conducted for the Governors Highway Safety Association was released. A reporter from Iowa called to get Bob Mionske’s take on the study, and we hadn’t even seen the study yet. That’s how it goes sometimes.

So we began skimming through the study, and as we did, I was reminded of Mark Twain’s observation about “lies, damned lies, and statistics.” It was immediately apparent that the study was flawed. Deeply flawed. Well, it was at least apparent to us. But would it be apparent to everybody? Would it be apparent to the media? Or to the Governors of the various states?

It doesn’t seem likely. More likely, most people, including the media, and influential people on Governors staffs across the country, would read the summary and accept the statistical analysis as “fact.” And because the statistical analysis is so thoroughly misleading, so completely wrong, the study has the potential to lead to deeply flawed public policy prescriptions.

So what exactly is wrong with this study? Read on….

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Insurance Advice For Oregon Bicyclists

By Bob Mionske 

Oregon Bicycle Accident Lawyer

In some countries, comprehensive insurance policies are available for cyclists; like their counterparts for motorists, these policies cover cyclists for risks such as liability, personal injury, uninsured motorists, and theft. Until recently, comprehensive insurance policies for cyclists were not available in the United States; however, comprehensive bicycle insurance policies are now available in the United States too, and it is no longer necessary for cyclists who wish to be insured to piece together coverage from other policies. Nevertheless, some cyclists may prefer to piece together coverage from existing policies rather than purchase a stand-alone insurance comprehensive bicycle policy. Both options are now available for cyclists.

While cyclists are not required to be insured, I strongly advise all cyclists to consider at least one type of insurance coverage—UM/UIM—as essential. Other types of coverage, while not quite as essential, nevertheless provide benefits to cyclists comparable to some of the more common benefits of comprehensive auto insurance.

So what types of insurance are available for cyclists?

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The Bike Law Interview: Daniel Flanzig and Jim Reed, Bike Law New York

By Bob Mionske

New York is a study in contradictions. The state is ranked 29th for bicycle-friendliness in the League of American Bicyclists’ 2014 annual ranking. And yet New York City is ranked as the most bicycle-friendly city in America by Bicycling magazine. Under the leadership of Janette Sadik-Khan, and with the support of then-Mayor Bloomberg, the city made dramatic strides towards integrating bicyclists into the city‘s fabric. And yet under the leadership of then Police Commissioner Ray Kelly, the police department has seemed to be engaged in a war with cyclists, periodically engaging in stringent crackdowns for violating imaginary laws, all in the name of “bicycle safety,” while simultaneously refusing to charge dangerous drivers for real violations that have resulted in serious injuries and deaths.

But New York is bigger than The Big Apple, stretching upstate, north to the Adirondacks, and west to the Finger lakes, and beyond, to the Great Lakes. To get a better picture of the state of cycling in the Empire State, I recently talked with New York bicycle accident attorneys Daniel Flanzig and Jim Reed, of Bike Law New York.

Daniel Flanzig

 

Jim Reed

***

Bob: Daniel, Jim, thanks for taking the time to talk with me. First, I’d like to welcome you to the Bike Law network. You are both well-known in New York cycling circles; you co-author Wheels of Justice, a monthly column for the New York Bicycling Coalition, and are both board members of the NYBC. Can you tell me how you first got involved in representing cyclists in New York?

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5 Ways to Improve 3 Foot Passing Laws

By Rick Bernardi

“3 feet to pass” is the law in California now. “3 foot laws” are a good idea—but that doesn’t mean that they can’t be improved. Here are 5 ways that 3 foot laws can be improved:

1. Eliminate exceptions to the laws that make them weaker: Under minimum safe passing distance laws (often called “3 foot laws”), drivers are supposed to leave a minimum distance (usually specified as 3 feet) between their vehicle and a cyclist when passing. But exceptions to the requirement to leave a minimum safe distance often make the laws less protective of cyclist safety than they should be. For example, California’s law allows drivers to make a pass closer than 3 feet if there isn’t enough room in the lane to leave at least 3 feet. And California isn’t alone in weakening safe passing laws. Eliminating these exceptions that weaken the safety laws will increase cyclist protection.

2. Link passing distance to passing speed: Under minimum safe passing distance laws, drivers are required to leave at least the minimum distance when passing a cyclist, but are still required to leave more than the minimum distance if safety requires a greater distance. One example of where greater passing distance is necessary is at higher passing speeds. New Hampshire has addressed this by requiring drivers to allow 1 foot more passing distance with each 10 MPH increase in passing speed. At 30 MPH, drivers are required to leave a minimum of 3 feet passing distance, at 40 MPH, drivers are required to leave a minimum of 4 feet passing distance, and at 50 MPH, drivers are required to leave a minimum of 5 feet passing distance. Linking passing distance to passing speed is a great idea, and should be the law in every state.

3. Change lanes to pass: One sure way to pass at a safe distance is to change lanes when passing. This is always legal, except on two lane roads divided by a double yellow line. But some state laws explicitly allow drivers to cross over the double yellow line (when it can be safely crossed) to pass a cyclist. When a lane is too narrow, it is safer to pass by changing lanes than to attempt to squeeze past while in the same lane. Safe passing laws can be strengthened by requiring drivers to change lanes to pass a cyclist when there is an available lane, and by allowing drivers to cross over the double yellow line to pass when it is safe to do so.

4. Make passing collisions prima facie evidence of an illegal pass: When drivers collide with a cyclist while passing, they will often attempt to shift the blame to the cyclist: “The cyclist came out of nowhere” is one common explanation for a crash. “The cyclist suddenly swerved into my path” is another commonly heard explanation. If the cyclist is seriously injured or killed, the driver’s explanation may be the only explanation we hear. More often than not, when a driver says that the pass was “safe” but the cyclist did something that doesn’t make any sense, it really means that the driver wasn’t paying attention, or was passing too close. But under the law, injured cyclists must prove that the driver’s pass was unsafe. 3 foot laws can be strengthened by making collisions prima facie evidence of an illegal pass. This means that when a driver is passing a cyclist and a collision results, the law would presume that the pass was too close. The driver could still rebut this presumption with evidence to show that the pass was not too close, but now the burden of proof would be where it properly belongs—on the driver who has the responsibility to pass at a safe distance.

5. Criminalize buzzing: Some close passes are the result of carelessness—the driver wasn’t paying attention and didn’t notice the cyclist, or the driver miscalculated passing distance. These errors are easily corrected: Drivers should be paying attention while driving, and when passing a cyclist, it is better to err on the side of safety, rather than trying to shave it to the minimum. When a driver makes a simple mistake, the result should be a ticket. But some drivers use their vehicles as weapons, and intentionally shave it as close as they can to intimidate the cyclist. When this happens, the driver is committing assault, and should be prosecuted. Safe passing laws can be improved by making intentional close passes a crime.

 

Bike Law - Bicycle Accident Lawyer

5 Reasons Why 3 Foot Passing Laws Are A Great Idea

By Rick Bernardi

Today, California’s new “3 Foot Passing law” takes effect, and is finally the law in the state. It’s been a long time coming—two previous attempts to pass the law met a fateful end at the tip of Governor Brown’s veto pen. The basic idea behind the 3 Foot Passing law is to explicitly spell out to drivers the minimum requirements for a safe pass. For a great summary of how California’s law will work, see California's "Three Feet for Safety Act": What you need to know.

But although many cyclists welcome the news, every time a 3 foot passing law is mentioned in the news, one or more cyclists will invariably ask what good the laws are. A common observation is “I’ve never seen the law enforced.” With that in mind, here are 5 reasons why 3 foot passing laws are a great idea:

1. They raise awareness: You can’t turn on the news or pick up a newspaper in California without seeing an article about the new 3 foot passing law. Whether drivers like the law, or hate it, a very public conversation about safe passing distance is now taking place in California. There might be some hermit somewhere in California who hasn’t heard about the new law, but it’s safe to say that most drivers have at least heard that they have to leave 3 feet of distance when they pass a cyclist. And that is huge.

2. They are a minimum, not a maximum: Minimum passing distance laws explicitly tell drivers that when passing a cyclist, they must leave at least the minimum passing distance specified by the law. This is a change from the traditional safe passing laws, which only require that passes be made at a “safe distance.” But the minimum passing distance is only a floor, below which the driver cannot go. The law still requires drivers to pass safely, and if the minimum passing distance is still too close to be safe, drivers are required by law to leave more than the minimum safe passing distance.

3. They change driver behavior: When drivers know what the law is, they can understand what is expected of them. Will some drivers continue to make unsafe passes? Sure. But some drivers will adjust their passing to comply with the law, and that will mean safer passes every time they pass a cyclist. Of course, some drivers won’t change their behavior on their own, which brings us to…

4. They are enforceable: This is the big issue for cyclists. What good is the law if it isn’t (or can’t be) enforced? Well the good news is the laws can be enforced. Police departments in Austin, Texas and Naples, Florida have shown the rest of the nation how it’s done. If the law isn’t being enforced in your town, sit down with your local law enforcement department and help them learn how it’s done.

5. Dangerous drivers can no longer argue that a buzz was “legal”: “Enforcement” isn’t just about ticketing drivers who pass too close. It’s also about holding dangerous drivers accountable after they pas too close and injure or kill a cyclist. When a dangerous driver passes too close and hits a cyclist, the driver will often try to argue that the pass was “safe” (and thus, legal), but that the cyclist made a mistake and got hit. But with minimum safe passing distance laws, a dangerous driver might still try to argue that the cyclist made a mistake, but can no longer argue that a close pass was “safe”or “legal.”
 

Bike Law - Bicycle Accident Lawyer

 

Careless

By Rick Bernardi

What do you do when no thought or provision is made for cyclists on the roadway?

It depends on who you are.

If you’re like most people, you’re likely to avoid that road altogether. A well-known study of Portland, Oregon residents’ feelings about bicycling for transportation indicated that the majority of the public would like to ride a bike if they felt it was safe. The study identified these would-be riders as the “interested, but concerned” segment of the population. These people are interested in riding a bike, but are concerned about getting hit by cars if they ride in traffic. So how many people are we talking about? A whopping 60% of the population. The question is, how do we alleviate their concern?

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