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

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?

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 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.

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.”

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.
 

Comments (Comment Moderation is enabled. Your comment will not appear until approved.)
Outrageous, isn't it?

Any thoughts on repealing CVC 21202?
# Posted By Richard Masoner | 12/9/09 7:27 PM
I think the problem here is not with the statute itself, which actually seems to allow cyclists quite a bit of leeway in making reasonable decisions about their safety.

Rather, the problem is that the law is not being correctly interpreted and enforced. In this case, neither the officer, nor the prosecutor, nor the Judge understood the law.

The bottom line is that police and prosecutors are not always going to be right on the law, and therefore, Judges have a responsibility to understand the law and apply it to the facts of the case. In Andrew Woolley's case, it is clear that the Judge did not understand the law, and did not apply the law to the facts of the case. Instead, he applied what he thinks the law should be.

Well, sometimes Judges are wrong on the law, too, which is why we have Courts of Appeal.

In this case, although Woolley lost at trial, no precedent was set, and another Judge-- or even a newly informed Judge Pro Tem Liska-- could rule based on what the law actually says at the next trial.
# Posted By Rick Bernardi | 12/9/09 7:41 PM
Have you ever heard of a case of an officer, prosecutor, or judge who ha correctly interpreted and understood cycling law?
# Posted By David Vo | 12/9/09 8:53 PM
That statute itself is most definitely the problem. The standard slow vehicle law (CVC 21654) is sufficient for cyclists.
# Posted By MikeOnBike | 12/9/09 8:54 PM
I hope Woolley can be persuaded to appeal. A reversal would provide some precedent, no? All you paladins out there, please comment.
# Posted By Pete van Nuys | 12/9/09 9:11 PM
Andrew Woolley is appealing his conviction to the Appellate Division of the Superior Court (the court in which his trial was held).

Although he lost at trial, no precedent has been set, so another Judge could decide a similar case differently. In fact, even if Andrew wins on appeal, no precedent will be set, because it will only be a Superior Court decision. If he loses his appeal, he would have to either pay his fine, or appeal to a higher court.

But appeals are dangerous. As unjust as these kinds of convictions are, unless cyclists are prepared to spend whatever time and money it takes to win on appeal, it is sometimes better to just take a loss at trial, than it would be to lose on appeal and set a bad precedent. No precedent means that we can come back to court and win another day; bad precedent means that all courts within that jurisdiction must follow the bad precedent. That is why cyclists must either be prepared to spend whatever time and money it takes to win on appeal, or to sometimes just take a loss at trial. Fortunately, as I said, the appeal in this case will not set precedent.
# Posted By Rick Bernardi | 12/9/09 9:17 PM
Great column, Bob.

The only way to deal with blatant injustice like this is to repeal the law that is being used as an excuse to treat bicyclists unfairly. The very existence of this discriminatory law justifies this kind of unfair treatment in the minds of those who don't understand bicycling traffic safety.

21202 and 21208 need to be repealed.
# Posted By Serge Issakov | 12/9/09 9:19 PM
Rick Bernardi wrote, "I think the problem here is not with the statute itself, ... neither the officer, nor the prosecutor, nor the Judge understood the law. "

I used to think that. Those days are gone. The officer and judge apparently felt justified in not even reading the law, much less trying to understand it. The statute is inherently discriminatory. The words arguably allow for some leeway that seems reasonable if you really look at it closely, but nobody but us bicycling law wonks does that. Not motorists, not police, not judges, not lawyers, and not even most bicyclists. They all think the law requires bicyclists to ride at the curb or edge, period. All the exceptions in the law indicate most of the reasons for why that's a bad idea. In reality, if you actually read and understand the law (which, again, almost nobody does), then it has very little applicability in most urban and suburban environments. Every driveway is a place where right turns are authorized. Many lanes are under 14' wide and so too narrow to be safely shared. Door zones and other hazards are ubiquitous. Traffic often slows to bicyclist speed and below, so bicyclists are often passing.

In other words, if this law was understood, then it would have very little purpose, if any, especially when you consider that the other slow moving laws would still apply to bicyclists when they are moving slower than other traffic. The statute's only practical purpose, therefore, is to be wrongly understood to mean bicyclists should be hugging the curb most if not all of the time, and to be used as a tool to intimidate cyclists from riding appropriately in the traffic lane. Never mind that every traffic cycling safety expert understands that bicyclists are often safer out in the normal traffic lane where they are more conspicuous, predictable, have better sight lines, are further from roadside hazards and have more buffer avoidance space.

Some fear that if 21202 (and 21208 - same reasons) is repealed all hell will break loose and bicyclists will be riding around all over the roads like crazy. But such fears are unfounded. First, bicyclists moving slower than traffic will still be subject to the slow moving laws, including riding far right on roads without lanes, and staying in the far right light on laned roads. Second, all hell has not broken loose in states without keep right laws, like Pennsylvania.

Please join the discussion at http://groups.google.com/group/bicycledriving

Serge
# Posted By Serge Issakov | 12/9/09 9:59 PM
Typo in that last comment, sorry...

I wrote: "... and staying in the far right light on laned roads."

Should be: "... and staying in the far right LANE on laned roads."
# Posted By Serge Issakov | 12/9/09 10:04 PM
Cyclists really should be careful what they wish for, lest it come true.

Given a choice between defending a violation of CVC 21202, and defending a violation of CVC 21654, there's no question that I would choose defending the ticket for 21202. Here's why.

Both statutes direct slower-moving traffic to keep to the right. However, there are several differences between the two statutes. One of those differences is that 21202 is specific to cyclists, while 21654 is applicable to vehicles that are not traveling at "the normal speed of traffic." Another difference is that while both statutes have "as close as practicable" language, 21202 lists many more specific, non-exclusive exceptions to the general rule. Arguably, 21654's "practicable" language could encompass those exceptions, but for defending a citation, I'd much rather have them spelled out for the Court than to have to persuade the Court that my interpretation of the law is right. Also, 21654 requires slower vehicles to ride to the right even if they are traveling at the speed limit; 21202 does not explicitly require that (although it could be argued that it implicitly requires it). Furthermore, 21202 allows cyclists to move left in order to avoid right-hooks; 21654 does not. Yet another difference is that 21202 allows cyclists to ride to the left on one-way streets; 21654 does not. Finally, 21654 includes a clause that specifies that failure to ride to the right is prima facie evidence of a violation; 21202 contains no such language. This clause shifts the burden of proof from the prosecutor to the defendant, making it easier for the prosecution to win its case.

One difference between the two laws that appeals to vehicular cyclists is that 21654 specifies that "any vehicle proceeding upon a highway at a speed less than the normal speed of traffic moving in the same direction at such time shall be driven in the right-hand lane for traffic or as close as practicable to the right-hand edge or curb..." In my opinion, the best interpretation of this language is that on roads with more than one lane in each direction, slower vehicles must travel in the right lane (this is what appeals to vehicular cyclists, because it allows them to take the lane), and if there is only one lane of travel, the slower vehicle must travel as close as practicable to the right.

However, that's not the only possible interpretation. It's conceivable that Courts would rule that the language means that slower motor vehicles must use the right lane, while cyclists must ride as close as practicable to the right. Again, I dont think that's the best interpretation of the language, but it's certainly possible that the Courts would arrive there. And if they did, cyclists would still be required to ride to the right, only without the safety exceptions that they currently enjoy, and with the burden of proof shifted to them.

The reality is that 21654 is the more restrictive of the two laws, while 21202 allows cyclists much more leeway in making reasonable decisions about their own safety. Whether as a cyclist on the roadway, or an attorney defending a case, I would prefer to have that leeway in the law.
# Posted By Rick Bernardi | 12/10/09 12:40 AM
Interesting Rick, but it seems to me that the only reasonable interpretation of "any vehicle proceeding upon a highway at a speed less than the normal speed of traffic moving in the same direction at such time shall be driven in the right-hand lane for traffic or as close as practicable to the right-hand edge or curb..." is that on roads with marked lanes (not just those with more than one lane in the given direction) the only restriction on slow-movers is to be in the right-hand lane; that the requirement of slow-movers to keep as far right as practicable (FRAP) only applies on roads without any marked lanes. But perhaps I'm missing something. Allow me to explain why I see it this way.

Consider a slow-moving vehicle on a 2 lane road with a center line. Is there any 21654 requirement for that vehicle to be driven FRAP? Why? He's already in the "far-right [and only] lane". The "OR as close as practicable to the right-hand edge or curb" clause can only apply as a requirement on roads without a right-hand lane, because on roads with right-hand lanes slow movers are in compliance simply by being in the right-hand lane. If someone is required to meet conditions "A or B", then if they meet condition A they are in compliance with the requirement. The alternative interpretation is that "A or B" means "A and B" - you still have to meet condition B even though you already meet condition A" - which is absurd. No? Of course officers and judges can ignore this wording too, but it should get corrected on appeal.

And that's the other thing - because 21654 is not bicycle-specific any ruling with respect to it must apply equally to all slow-movers, not just bicyclists. So a prejudicial interpretation against bicyclists is practically impossible, at least on appeal. Remember that Trotwood v. Selz relied on the precedent set in a Georgia case involving a corn combine, not a bicycle. Because the impeding traffic law applies in general to all slow-movers, not just bicyclists, any decisions made with respect to it have automatic applicability to all slow-movers equally. It should be noted that in Trotwood the appeals court said that had the cyclist been cited with the bicyclist-specific keep-right law he would probably have been guilty.

There is a tremendous amount of "case precedence protection" that comes along with general law that is not available with discriminatory bicycle-specific law, for which case law is sparse. I think it's important to not overlook the value of the relatively substantial case law that comes with the general statutes, and thus limits the "creativity" Joe Six-Pack judges can use to interpret the words on their own (like "A or B" means "A and B"), especially with respect to eliminating unfair interpretation targeted at bicyclists because they are bicyclists.

Now, given the only reasonable interpretation of that "or" clause, it seems to me that all of the supposed advantages of 21202 over 21654 are almost entirely moot. The special exceptions in 21202 (that are virtually ignored by just about everyone anyway) thus only are relevant and roads without marked lanes, and, even there, the term "practicable" arguably provides at least as much protection (with Woolley we see how much protection the explicit passing and right turn exceptions in 21202 actually provide - none). After all, it's not practicable to continue along the right edge in the "right hook" zone, or when passing.

And again, I want to reiterate the point, because it's crucial but I think takes a while to fully absorb and appreciate, about how necessary it is to eliminate discriminatory law in the process of eliminating discrimination in general. There can be no denying that our culture is riddled with anti-bicyclist discrimination, and discriminatory laws like 21202 and 21208 just reinforce these unfortunate biases. Repealing them will not fix it all of course, but it's a necessary (though insufficient) step on the road to achieving fair and equal driver status for bicyclists, much like suffrage was crucial for equal treatment of women in society, and the civil rights movement was for helping with racial discrimination. Removing bias in the law does not remove bias in the culture, but it surely helps.

Finally, there are at least eight states plus D.C. without bicyclist-specific keep right laws (Ark, Ind, Iowa, Mass, Mississippi, NH, NC, Penn), and I've never heard of any justice issues from those states with respect to enforcement of the slow-mover law against bicyclists... have you?
# Posted By Serge Issakov | 12/10/09 2:19 AM
Rick wrote: "Finally, 21654 includes a clause that specifies that failure to ride to the right is prima facie evidence of a violation; 21202 contains no such language. This clause shifts the burden of proof from the prosecutor to the defendant, making it easier for the prosecution to win its case."

If what Serge said about being anywhere in the right most lane (even on a two lane road) is sufficient to comply with 21654, then the above wouldn't matter, except in the rare case of a road without any lane markings, right?

Even so, the problem is that the micromanaging of cyclist position within a lane via 21202 opens up our choice of lane position to second guessing by others. This is a requirement imposed only on bicyclists and no other narrow slower moving vehicles. While in theory the burden of proof for a 21202 violation is on the prosecution, the way these cases have played out in traffic courts all across the state is that the citing officer asserts that the cyclist could have been safely further right, and then the burden is on the defendant to justify why he was further left.
# Posted By Brian DeSousa | 12/10/09 4:04 AM
To all,
A two lane road has two lanes, and from the perspective of a driver, has a left hand lane which, depending on the center line striping, may be used for passing, and a right hand lane which is used for normal travel. So in this context the meaning of the first of the two or conjoined clauses of CVC 21654 (a), right hand lane for traffic is quite clear. I believe the reason CVC 21656 exists at all, is precisely because it ONLY applies on two lane roads to prevent a driver, who is otherwise complying with 21654(a), from holding back a large number of drivers on such two lane roads. Do notice that 21656 does NOT apply on roads with no center stripe, so a driver is NOT required to leave the roadway when the road has no lane markings, only when the road has exactly two lanes!
I believe the proper way out of this mess is to repeal 21202 and recast 21654(a) by splitting the or conjoined clauses, either into two laws or with another subsection, with the bicyclist specific hazards enumerated in the latter law/section containing the as far right as practicable wording.
# Posted By Dan Gutierrez | 12/10/09 11:12 AM
Rick,

the last few comments are from a group of bicyclists interested in seeing that CVC 21656 applies to bicyclists, despite bicyclists, being traffic, set the 'normal' speed of traffic and are not bound by slow moving vehicle shall pull off roadway to allow faster vehicles to pass laws like CVC 21656.

not considering the implications of CVC21202 versus 21654 in this case, can you comment briefly on wether bicyclists can be considered capable of impeding traffic and required to pull off the highway as per CVC 21656.
# Posted By mike Beck | 12/10/09 11:23 AM
Beck, CVC 21656 is not an impeding traffic law. California does have an impeding traffic law, CVC 22400. Heres the text of 21656:
21656. On a two-lane highway where passing is unsafe because of traffic in the opposite direction or other conditions, a slow-moving vehicle, including a passenger vehicle, behind which five or more vehicles are formed in line, shall turn off the roadway at the nearest place designated as a turnout by signs erected by the authority having jurisdiction over the highway, or wherever sufficient area for a safe turnout exists, in order to permit the vehicles following it to proceed. As used in this section a slow-moving vehicle is one which is proceeding at a rate of speed less than the normal flow of traffic at the particular time and place.
==========================
Please note that the word impede does not appear. Also note that a slow moving vehicle in this context means moving slower than the drivers following at that place and time.
Heres 22400:
22400. (a) No person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic, unless the reduced speed is necessary for safe operation, because of a grade, or in compliance with law.
No person shall bring a vehicle to a complete stop upon a highway so as to impede or block the normal and reasonable movement of traffic unless the stop is necessary for safe operation or in compliance with law.
(b) Whenever the Department of Transportation determines on the basis of an engineering and traffic survey that slow speeds on any part of a state highway consistently impede the normal and reasonable movement of traffic, the department may determine and declare a minimum speed limit below which no person shall drive a vehicle, except when necessary for safe operation or in compliance with law, when appropriate signs giving notice thereof are erected along the part of the highway for which a minimum speed limit is established.
Subdivision (b) of this section shall apply only to vehicles subject to registration.
==========================
This law does use the word impede. Ill leave the can of worms associated with the 22400(a) as it applies, or rather should not apply, to bicyclists alone in this post! 8-)
# Posted By Dan Gutierrez | 12/10/09 11:46 AM
So ironically, Woolley came to Officer Root's attention after Woolley got annoyed at the driver who stopped in the middle of traffic to look at a map.
# Posted By Richard Masoner | 12/10/09 2:08 PM
dan, cyclists cannot 'impede traffic' by going slower than the 'normal speed of traffic at the time and place' because normal refers to the operating characteristics of the vehicle being driven (Selz V Trotwood).

Additionally, in states like California and Washington, where bicycles have a more specific statutory requirement to their operation in the presence of overtaking traffic, bicyclists have a specific directive that overrides a more general directive.

This "Bikes just FRAP, not vehicles as SMV" is in accordance with the familiar rule of statutory construction that a special statute which deals expressly with a particular subject takes precedence over a general statute covering the same subject, bicyclists are ONLY required to operate FRAP and not the more general SMV law. "It is well established that 'Where the terms of a later specific statute apply to a situation covered by an earlier general one,
the later specific statute controls.'"

Bicyclists in california ARE NOT governed by more general SMV laws of any kind, as a more specific statutes apply to bicycle operation versus general laws about slow moving vehicles.
# Posted By mike Beck | 12/10/09 4:07 PM
"Bicyclists in california ARE NOT governed by more general SMV laws of any kind, as a more specific statutes apply to bicycle operation versus general laws about slow moving vehicles."

I would love Rick or Bob to confirm this, but I believe the more general statutes apply when the more specific statute does not apply due to an exception. For example, when a slow-moving bicyclist on a 4 lane highway is approaching a place where right turns are authorized, 21202 no longer applies. That doesn't mean he can legally move over into the fast lane - 21654 now applies and restricts him, along with all SMV drivers, to the rightmost lane.
# Posted By Serge Issakov | 12/10/09 4:45 PM
John Forester just posted this on the BicycleDriving google groups forum:

"The trouble with bicycle-specific restrictions is that they get enforced
according to the bicycle prejudice of the system. That means that the
enforcement is done by prejudice that is against both our interests and
judicial fairness. If there were no bicycle-specific restrictions, the
general slow-moving vehicle law would have to be enforced so that the
same enforcement criteria were used for cyclists as for slow motorists.
If the enforcement were done according to bicycle prejudice, then the
appellate courts would have to disallow it. That's the difference."
# Posted By Serge Issakov | 12/10/09 6:34 PM
To rebut john foresters' blather, i draw attention to the fact Rick Bernardi has clearly illustrated the case in CA law where the bicyclist specific statue (21202) affords greater legal allowances to bicyclists than the general vehicle statute (21654)

bicycling 'advocates' that are willing to circumscribe our rights to the road under purports of 'equality' with other traffic do bicyclists a grave disservice.
# Posted By mike Beck | 12/11/09 3:29 PM
There's a simple way to test Mike Beck's and Rick Bernardi's theory that the slow bike law (21202) is more flexible than the slow vehicle law (21654): In those states that don't have a slow bike law, are there more or fewer cases similar to Andrew Woolley's?

Also, how common are unfair 21654 citations for non-cyclists?

Of course, repeal of 21202 could be coupled with moving the more comprehensive exceptions to 21654, to the benefit of all slow drivers.

Meanwhile, our bike lane law (21208) is less explicit than 21202. If the explicitness of the exceptions is important, then unfair 21208 citations should be out of proportion compared to the percentage of cyclists on roads with bike lanes.
# Posted By MikeOnBike | 12/11/09 3:52 PM
Would like to hear Rick's take on it, but seems to me that even if the exceptions to 21202 apply, cyclists still have to comply with 21654. Otherwise if the outside lane were too narrow to safely share, a slow cyclist could ride in any lane on a multilaned 55 mph street. Only having to comply with 21654 is less clearly onerous than complying with both 21202 and 21654.
# Posted By Brian DeSousa | 12/11/09 3:54 PM
Sorry for the delay in replying, we're working on getting the next Bicycling column out. I'll check back in this weekend with replies to some of the issues and questions raised here.

Rick
# Posted By Rick Bernardi | 12/11/09 7:11 PM
Thanks for checking in Rick. No hurry. I, for one, would prefer deep and careful consideration of the main question here, regarding the pros/cons of getting ride of bike-specific law (except cyclist-rights enabling law, e.g. CVC 21200) perhaps even devoting a Bicycling column to it.

I think the strongest argument for getting rid of bike-specific law is that this requires laws that apply to bicyclists to be interpreted without anti-bike bias, because, by definition, they don't apply only to bikes. While anti-bike bias may still color some decisions, it has to get straightened out on appeal.

Supporting this argument is 1) the example of Trotwood v. Selz in which a non-bike example from another state even served as a precedent in interpreting how a law applies to a bicyclist, an d 2) the example of bicyclists apparently being treated relatively better by the law and law enforcement in the 10 or so states that don't have bike-specific law (or in which the bike-specific law is essentially a carbon-copy of SMV law, as in PA), than in states which do have bike-specific law.

The closely related issue is how the 21654 "or" clause is interpreted on roads with marked roads (including two-lane roads with a center stripe), but, there again, that benefits from the answer having to apply to all SMVs, not just bicyclists.
# Posted By Serge Issakov | 12/11/09 7:26 PM
I wish I could edit my typos...

Above I wrote: "The closely related issue is how the 21654 "or" clause is interpreted on roads with marked roads ..."

Should be: "The closely related issue is how the 21654 "or" clause is interpreted on roads with marked LANES ..."
# Posted By Serge Issakov | 12/11/09 7:29 PM
When one of the exceptions to the CVC 21202 is met, CVC 21202 no longer applies, so there is no micromanagement of a bicyclist's position within a lane and there is no requirement to share a lane. This is made clear in this CA Attorney General's opinion: <http://rmshant.googlepages.com/AGOpinionCV74-224IL...;, which says that but for CVC 21202, the regular SMV laws (CVC 21654 and 21656) would apply. A SMV has to be driven in the right lane or, if the road is unlaned, as far right on the roadway as practicable.
# Posted By Bob Shanteau | 12/12/09 7:59 PM
The appellate division of the Superior Court agreed with Woolley - that he was not in violation of 21202.

The brief is posted here:

http://groups.google.com/group/bicycledriving/web/...
# Posted By Serge Issakov | 12/14/09 6:09 PM
I'm subscribed to be notified when comments are added to this discussion. I was just so notified, but I don't see the comment.

In any case, in looking for it I was reminded of this interesting discussion, and that Rick (or Bob or Steve) still owes us a reply...
# Posted By Serge Issakov | 7/15/10 4:01 PM