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Road Rights- Buzz Kill

By Bob Mionske

One of the most egregious violations of our right to the road is the “buzz,” when a motorist passes a cyclist perilously close—so close that buzzes frequently become rear-end collisions.

Some motorists are simply so inattentive while driving that they don’t even know that they are passing a cyclist. Other motorists don’t understand what a safe passing distance is.

But many drivers who buzz cyclists know exactly what they are doing. Vigilante motorists who disagree with the laws that give cyclists the right to the road attempt to force us from that road, by using their vehicles to intimidate their victims.

Every state requires that overtaking vehicles must pass at a safe distance. If the overtaking vehicle cannot, the law requires the driver to wait until the pass can be safely executed. Thus, buzzing a cyclist is against the law in every state. It is never legal, under any circumstances.

Despite the law, drivers who buzz cyclists are rarely ticketed, because buzzes rarely occur in the presence of police. But even if the police do observe a violation, it can still be difficult to get a conviction. The law requires passes to be made at a “safe distance,” but what does that mean, exactly? A driver who is accused of making a pass at an unsafe distance can argue that the passing distance was safe for existing conditions—even if the pass resulted in a collision. It’s then up to the judge or jury to decide what is safe.

What if, however, we could specify what the minimum safe passing distance is? That is the idea behind the movement to create laws that specify a minimum safe passing distance, typically three feet. This gives drivers, police, judges, and juries guidance in deciding whether a pass was made safely.

On September 6, California became the most recent state to tackle the problem, when the legislature passed a bill requiring drivers to pass at a minimum distance of three feet; included were several provisions to help make it easy for drivers to comply with the law. California cyclists were elated—but not for long. One month later, on October 7, Governor Jerry Brown vetoed California’s new three-foot law—an act that put him squarely in Rick Perry territory.

Let’s take a look at the explanations the two governors made in their respective veto statements. (While both governors have teams of lawyers helping with the legal analysis, it is the governor’s signature that appears on his explanation for vetoing the bill. Thus, the governor owns that explanation.)

First, consider the changes the 2009 Texas bill would have made to the law. The bill created a class of “vulnerable road users,” defined to include, among others, pedestrians, runners, highway workers, equestrians, motorcyclists, and cyclists. The bill made it illegal to pass closer than three feet to a vulnerable road user, to fail to yield when making a left or right turn, to open a car door unless it is safe to do so, and to threaten, intimidate, harass, or throw something at any vulnerable road user.

Governor Perry argued that “this bill contradicts much of the current statute…”

Except it doesn’t contradict the current statute…unless Governor Perry is arguing that the current statute directs motorists to buzz, fail to yield, door, and threaten, intimidate, or harass vulnerable road users.

Of course there’s also Governor Perry’s argument that the bill “places the liability and responsibility on the operator of a motor vehicle when encountering one of these vulnerable road users.” Well, yeah. If a motorist is passing somebody on the road, or making a turn, or opening a door, shouldn’t the law require the motorist to do so safely? But ignoring that, Governor Perry implied that requiring motorists to operate their vehicles safely would somehow be an unfair burden.

And yet, despite Governor Perry’s faulty—and disingenuous—legal analysis, Governor Brown managed to outdo him.

Under Senate Bill 910, motorists would have been required to pass cyclists at a minimum distance of three feet when the driver is traveling at speeds greater than 15 mph in a “sub-standard width lane.” At speeds lower than 15 mph, the driver would still be required to pass at a safe distance. To help facilitate safe passing of cyclists, motorists would be allowed to cross over the center line to pass when it is safe to do so. And on roads where the lanes are wide enough “for a bicycle and a vehicle to travel safely side by side within the lane,” motorists wouldn’t even have to change lanes; they would be able to pass within the lane as long as they left a minimum three feet of clearance.

However, requiring drivers to safely pass cyclists was apparently too much for California’s governor. Joining Governor Perry in siding with unsafe drivers, Governor Brown vetoed the safe passing law. Explaining his decision, Governor Brown argued that requiring drivers to slow “to 15 mph to pass a bicycle could cause rear end collisions. On other roads, a bicycle may travel at or near 15 mph creating a long line of cars behind the cyclist.”

The problem with Governor Brown’s analysis: The law did not require drivers to slow to 15 mph to pass a cyclist; the law required drivers to leave a buffer of at least three feet when passing cyclists at speeds greater than 15 mph.

Despite his claim that he “wholeheartedly supports” bicycle safety, Governor Brown sided squarely with the California Highway Patrol and the AAA in protecting drivers who buzz cyclists—and then asked for a bill next year that solves the imaginary problems raised by his mischaracterization of the law.

Good luck coming up with that law, California. And good luck to California’s cyclists, now that the message has been sent to unsafe drivers that they can continue to endanger cyclists’ lives.

Research and assistance by Rick Bernardi, J.D.

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This article, Buzz Kill, was originally published on Bicycling on December 22, 2011.

Now read the fine print:
Bicycle and the Law, Bob MionskeBob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.
After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).
Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.
 
If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.
Important notice:
The information provided in the "Road Rights" column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

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