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Cyclist, city attorney in lane dispute

The Arizona Daily Sun: Cyclist, city attorney in lane dispute

By LARRY HENDRICKS Assistant City Editor | Posted: Thursday, February 11, 2010 5:30 am

Editor's note: See clarification made to this story at 11:45 a.m. on 2/11/2010 and noted at end of story.

Randy Mason was riding his bicycle on East Butler Avenue on Dec. 19. The bike lane was partially filled with snow, so he was riding close to the white line inside the lane.

Along the way, a Mountain Line bus drove past without giving Mason 3 feet of space while passing.

Mason took it upon himself to educate the driver about the 3-foot law.

Neither the driver nor a responding Flagstaff police officer knew about the 3-foot law and both were misinformed about other laws governing bicycles, according to videotape evidence of the dispute.

And in the wake of the incident, the city attorney has determined the 3-foot rule doesn't apply because Mason was in the bicycle lane and not in the lane in which the bus was traveling.

That is an interpretation, said Mason, that is incorrect and might even get somebody killed. An attorney who represents bicyclists when they are injured in traffic collisions agrees.

After the incident, Mason posted a home video and started a blog of the incident. He also requested and received raw video of the incident from the agency that operates Mountain Line. He then edited and pieced together the video and placed it on the blog.

When people reading the blog began to contact city officials, the police department initiated a formal complaint on Mason's behalf.

3-FOOT LAW

Deputy Chief Kevin Treadway said the police department has documented the incident and will submit the matter to the city attorney for review once the investigation is complete. But it will be up to the city attorney to determine if a traffic violation occurred.

Additionally, Treadway said that the video of the bus passing the cyclist does not clearly show whether the bus was within 3 feet of the cyclist, even if the law did apply.

Mason said the city attorney's interpretation of the 3-foot law is dangerous to cyclists.

"If you choose to interpret the law this way, then somebody's going to die," Mason said.

Attorney Erik Ryberg, a Tucson-based attorney who represents cyclists injured in traffic collisions, agreed with Mason.

"It's a really unfortunate reading of the statute," Ryberg said, adding that the statute doesn't mention lane differences until the last subsection, which refers to injuries that happen in a bicycle lane.

"This guy's trying to ride as safely as he can," Ryberg said. "He's trying to use the bike lane, but the bike lane's full of snow."

"Not requiring a vehicle to observe the 3-foot law while a cyclist is in the bike lane, but requiring a vehicle to observe the law when the cyclist is in the same lane of travel as the vehicle doesn't make sense," Ryberg added.

"What that would mean is that a bike lane provides less protection to a cyclist than a cyclist who decides to disregard the bike lane," Ryberg said.

As to what the cyclist should have done given the circumstances, Treadway said Mason should have opted to ride in the roadway and as far right in the lane, per law. Traffic wishing to pass Mason, at that point, would then have to abide by the 3-foot law.

TRAINING UPPED

Mason said he also was troubled by the incident because the officer who responded did so believing Mason was being disorderly, based on a call by the driver of the bus requesting police presence.

He was later cleared of a misdemeanor charge.

Because the Mountain Line video shows that the officer was not familiar with the law the cyclist was referring to, the police department issued a department-wide training bulletin requiring all officers to review all bicycle laws, Treadway said.

Jeff Meilbeck, director of NAIPTA, which operates Mountain Line, said the driver of the bus was coached on ways to avoid being baited into an argument with a confrontational person.

"Our operators are not attorneys, they are operators," Meilbeck wrote in an e-mail to the Daily Sun. "We have also used the incident as a learning opportunity and reminder for all staff of the 3-foot law pertaining to bicycles and the role special interest advocates play in our society."

The video provided by NAIPTA also shows that the speed of the bus when passing Mason was 44 mph, which is 9 mph above the posted speed limit.

Treadway said that for officers to issue a speeding ticket, they would need to present background information on any device used to measure speed as well as be able to specify exactly where a violation of speed happened, which is difficult to do with video evidence.

Even if an officer had used a radar gun and stopped the bus driver, because the speed was under 10 mph over the speed limit, the officer would have had the discretion to issue a warning, Treadway said.

In a letter to residents concerned about the incident, Police Chief Brent Cooper wrote, "We are doing our best to see that he (Mason) gets his day in court if he wishes to pursue charges against the bus driver."

Cooper later added, "Please believe me when I say that we at the Flagstaff Police Department are very concerned about bicycle safety and have taken this situation seriously."

Mason said his intent in pursuing the issue is to get a definitive answer in court on whether the 3-foot law applies to bike lanes. The answer is still unclear in his mind, he said.

"Can we expect it or not?"

Larry Hendricks can be reached at 556-2262 or lhendricks@azdailysun.com.

*Clarification, 11:45 a.m. 2/11/2010 -- Staff at the city attorney's office has yet to make a final determination whether the state's 3-foot statute applies when a cyclist is in a bike lane. Police officials also state that the video evidence alone would not allow an officer under oath to testify that the Mountain Line bus was within 3 feet of the cyclist.

The 3-foot law

28-735. Overtaking bicycles; civil penalties
A. When overtaking and passing a bicycle proceeding in the same direction, a person driving a motor vehicle shall exercise due care by leaving a safe distance between the motor vehicle and the bicycle of not less than 3 feet until the motor vehicle is safely past the overtaken bicycle.
B. If a person violates this section and the violation results in a collision causing:
1. Serious physical injury as defined in section 13-105 to another person, the violator is subject to a civil penalty of up to $500.
2. Death to another person, the violator is subject to a civil penalty of up to $1,000.
C. Subsection B of this section does not apply to a bicyclist who is injured in a vehicular traffic lane when a designated bicycle lane or path is present and passable.