By Rick Bernardi

With a brand-new year stretching out before us, full of promise and hope, it’s a natural time to think not just of what the year will bring to us, but of what we will bring to the year. With that in mind, here is the 2nd of 5 improvements we can make to Oregon’s bicycle laws.

2. Strengthen Oregon’s protection of vulnerable roadway users

June 9th, 2007—Tim O’Donnell was on a group ride in Washington County with the Portland Velo Cycling Club. The five cyclists in the group were riding south on NW Cornelius Road, preparing to turn east (a left turn) on NW Long Road. O’Donnell, the second cyclist in the line, signaled his turn, and began turning.

At that moment, a driver made an illegal effort to pass to the left of the left-turning cyclists, and crashed into O’Donnell as he was making his turn. O’Donnell was fatally injured and died at the scene. The driver, 26 year-old Jennifer Knight, was cited for Driving while suspended, Careless driving, and Passing in a no passing zone. Within weeks, Knight pleaded No Contest to the charges, and was sentenced to pay a $1,1442 fine—the maximum fine available under the law—payable in monthlyinstallments. Knight was not sentenced to any jail time.

Shortly afterwards, a fuller portrait of the driver emerged: Knight’s Oregon driver’s license had been suspended for Failure to appear on a ticket for Driving uninsured. But rather than take responsibility for her traffic violations, Knight moved to Idaho and acquired an Idaho driver’s license. But her troubles didn’t end with her new license. In Idaho, Knight caused a crash when she failed to yield to a driver in Idaho, and was cited by law enforcement for inattentiveness. Again seeking to evade responsibility for her actions, Knight fled Idaho and returned to Oregon, where, 6 days later, with her Oregon license still suspended, her careless driving took a fatal turn when sheattempted an illegal pass while a group of cyclists were making a left turn.

Tim O’Donnell

In the immediate aftermath of the collision that ended Tim O’Donnell’s life, a “Vulnerable Roadway User” bill that was already under consideration in the Oregon Senate took on new urgency. Under the proposed legislation, an enhanced penalty would be added to a citation for careless driving if a “vulnerable roadway user” (a class of roadway users that includes not only cyclists, but pedestrians, equestrians, and farm vehicle operators) was killed or seriously injured by a careless driver. Under the enhanced penalty, the careless driver would be subject to completing a traffic safety course, performing between 100 and 200 hours of community service, paying a fine of up to $12,500, and having their license suspended. This was a significant improvement over the then-existing status quo in which drivers who carelessly took a life would face nothing more than a token fine they could mail in, without ever having to go to court and stand before a judge to answer for their carelessness.

With a final push from Tim O’Donnell’s widow and the Bicycle Transportation Alliance (now The Street Trust), the Vulnerable Roadway Users bill was passed, and Oregon became the first state in the nation with a Vulnerable Roadway Users bill. Today, Oregon remains one of a handful of states with a Vulnerable Roadway Users law.

Unfortunately, the law isn’t as protective of Oregon’s vulnerable roadway users as we like to think. The enhanced penalties—a $12,500 fine and a one-year suspension of driving privileges—only kick in if the careless driver fails to complete a traffic safety course and 100 to 200 hours of driver improvement and traffic safety related community service. As long as the driver completes those requirements within one year, the enhanced fine and driver’s license suspension don’t kick in. It’s a carrot and stick approach to traffic safety—if you compete a traffic safety class and community service, Oregon won’t hit you with a massive fine and one-year suspension of your driver’s license.

That’s not a bad approach to enhancing traffic safety.

But it’s not enough.

Here’s why: A multitude of sins fall under the umbrella of “careless driving.” It could mean somebody was daydreaming and didn’t see a pedestrian in the crosswalk. It could mean somebody was changing the station on the car stereo and didn’t notice an equestrian until it was too late. It could mean somebody was texting while driving and never saw a farm tractor pull onto the road. It could mean somebody was driving on a suspended license and killed a cyclist while making a blatantly illegal pass.

And those are just a few of the possible scenarios vulnerable roadway users face from careless drivers. The fact is, there are massive gaps in protection for vulnerable roadway users. For example, until recently, the law didn’t even cover every vulnerable roadway user. Oregon’s Vulnerable Roadway User’s law was a good start, but it left motorcyclists and moped ridersoutside the protection of the law. That omission from the law was corrected with the passage of a new law in 2019 that addedmotorcyclists and moped riders to the definition of Vulnerable Roadway Users. But even with that glaring omission corrected,other glaring omissions remain in our laws, and they need to be addressed.

Nobody wants to send a driver to prison for an involuntary,momentary lapse of attention that results in a crash. But what about drivers who do something that’s illegal, know they’re doing something that’s illegal, and “accidentally” kill someone? Increasingly, there’s far less sympathy for drivers who are deliberately careless. Oregon has already stiffened its texting while driving law, making Oregon’s law the second toughest in the nation.

So while sending an unintentionally careless driver to traffic safety school when they injure or kill a vulnerable roadway user is a great approach to improving road safety, some “accidents” call for a more serious response. And so, with the limitations of Oregon’s Vulnerable Roadway Users law in mind, here are twothings we can do to strengthen Oregon’s protection of vulnerable roadway users.

1. Make a violation of a traffic law that results in the injury or death of a vulnerable roadway user prima facie evidence of careless driving.

If a driver injures or kills a cyclist and is cited for careless driving, the enhanced penalty of the Vulnerable Roadway Users law kicks in. But what happens if a driver violates the law, and injures or kills a cyclist, but is not cited for careless driving?

No enhanced penalty.

This is what happened in 2012, when Christeen Osborn, a surgeon from Hood River, Oregon, was hit from behind by a driver. Although the driver was found to be at fault by police, and was issued a citation, she was cited for Failure to drive within lane, rather than Careless driving, and thus, was not subject to the enhanced penalty of the Vulnerable Roadway User law. Although the driver had hit Osborn after inexplicably swerving off the roadway, and although Osborn was critically injured in the hit-from-behind collision, Oregon State Police maintained that “The trooper’s decision to cite is based upon whether there is enough evidence to prove that the driver was operating the vehicle in a manner that endangers or would be likely to endanger any person or property. The fact that someone was injured is not necessarily enough to prove the vehicle was being operated carelessly or recklessly.”

So here’s the problem with how the police interpreted the law: A cyclist was riding on the shoulder of the road. A driver inexplicably swerved onto the shoulder of the road and hit the cyclist from behind. A careless driving charge requires proof that the driver was operating the vehicle “in a manner that endangers or would be likely to endanger any person or property.” So if a driver swerves off the road just before passing a cyclist, and continues driving on the shoulder while closing in on the cyclist, would that constitute driving in a manner that endangers or is likely to endanger the cyclist? I would argue that it does, and fits the definition of careless driving. But the Oregon State Police didn’t see it that way, and as a result, the driver who seriously injured Doctor Osborn escaped the extremely onerous penalty of having to attend a traffic safety course.

We can improve Oregon’s Vulnerable Roadway User law by making an injury or fatality of a vulnerable roadway user prima facie evidence of careless or reckless driving if the injury or death was found to have resulted from the driver’s violation of any traffic law. This means that the driver would be presumed by law to have been operating carelessly or recklessly, but the driver could rebut that presumption of carelessness with evidence at trial.

By making it clear that violating a traffic law when the violation endangers or is likely to endanger a vulnerable roadway user is prima facie evidence of careless driving, the state will be sending instruction to law enforcement officers on how to interpret and enforce the law, and will be sending a message to drivers that they are expected to drive safely.

2. Fill in the donut holes in Oregon law.

The penalty for Failure to drive within lane is a $265 fine.The penalty for Failure to drive within lane and killing a vulnerable roadway user is a $265 fine.

The penalty for Unsafe passing of person operating a bicycle is a $265 fine. The penalty for Unsafe passing of person operating a bicycle and killing the bicyclist is a $265 fine.

The penalty for Failure to yield to rider on bicycle lane is a $265 fine. The penalty for Failure to yield to rider on bicycle lane and killing the bicyclist is a $265 fine.

The penalty for a Dangerous left turn is a $265 fine. The penalty for a Dangerous left turn that kills a bicyclist is a $265 fine.

The penalty for failure to yield to a bicyclist when making a right turn is a $265 fine. The penalty for killing a bicyclist after failure to yield when making a right turn is a $265 fine.

Do you know what the penalty is for vehicular homicide?

There isn’t one.

That’s because Oregon is one of a handful of states that doesn’t have a vehicular homicide law on the books. And it’s not for lack of trying.

It’s for lack of interest.

In the aftermath of Tim O’Donnell’s death in 2007, the Bicycle Transportation Alliance (now The Street Trust) lobbied hard to get a vehicular homicide law passed, but the effort failed in the Oregon legislature.

So if the State of Oregon doesn’t think your life is important, what about your injury? Important?

Nope.

A driver can violate the law, injure you, even seriously, and it’s the exact same penalty as if nobody was injured.

These are the donut holes in Oregon law. There’s absolutely no difference between a traffic violation in which nobody is injured, a traffic violation in which a cyclist is injured, a traffic violation in which a cyclist is seriously injured, or a traffic violation in which a cyclist is killed.

And it makes no sense. The message it sends to drivers and law enforcement alike is that your life is meaningless. $265, live or die. So how likely are drivers to value your safety when the state is telling them it’s no big deal?

These donut holes are sending the wrong message to drivers and law enforcement alike, and they need to be filled. The penalty for a traffic violation in which somebody is injured should not be exactly the same as the penalty for a traffic violation in which nobody is injured, and the penalty for a traffic violation in which somebody is killed should not be exactly the same as the penalty for a traffic violation in which nobody is killed.

We need a vehicular homicide law in Oregon, and we need a traffic injury law covering the vast middle ground between minor traffic violations in which nobody is injured and vehicular homicides.

***

If you’ve been injured by a careless driver, contact bicyclelaw.com or another personal injury attorney who understands bicycling. While many attorneys are competent to handle general injury cases, make sure your attorney has experience and is familiar with:

  • Bicycle traffic laws
  • Negotiating bicycle accident cases with insurance companies
  • Trying bicycle accident cases in court
  • The prevailing prejudice against cyclists by motorists and juries
  • The names and functions of all bicycle components
  • The speed bikes travel as well as braking and cornering
  • Bicycle handling skills, techniques, and customs
  • How to get the full replacement value property damage estimates for your bicycle
  • Establishing the value of lost riding time
  • Leading bicycle accident reconstruction experts
  • Licensed forensic bicycle engineers
  • Establishing the value of permanent diminished riding ability

For more information:

For information about bicycle “accidents,” see About Bicycle Accidents
For information about protecting yourself with insurance, see Insurance Advice.
For more in-depth information about accidents and insurance, see Bicycling & the Law.
For information on avoiding accidents before they occur, see How to Avoid Car-On-Bike Accidents.
Related Article: About Bicycle Crashes: Why We Say “Bicycle Accidents” Are Not Accidents

If you have been injured in a bicycle accident, whether in a solo accident that may be the result of another party’s negligence, or in a collision with another person, contact bicyclelaw.com for a free consultation with bicycle attorney Bob Mionske

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