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 first of 5 improvements we can make to Oregon’s bicycle laws.

  1. Strengthen Oregon’s Safe Passing Law

Oregon has a Minimum Safe Passing Distance law that is unique in the nation. Where other states have focused on a minimum safe passing distance measured in feet (typically three feet), Oregon has taken a decidedly different approach—the minimum safe passing distance in Oregon is the distance the driver would need to avoid hitting a cyclist if the cyclist were to fall into the driver’s lane of traffic.

Oregon cyclists tend to love this concept, but it’s not without its problems, and to make matters worse, the law is burdened with several exceptions that weaken it to the point that it’s often a minimum safe distance passing law in name only. Oregon’s law can be and should be strengthened to make our roads safer for cyclists. Here’s what we can do to strengthen Oregon’s safe passing law:

  • Clarify the minimum safe passing distance.

Oregon’s cyclists tend to love the safe passing law, because it requires probably the most generous safe passing distance in the nation. I get it.

But it’s also the most confusing law in the nation, and that needs to change. Here’s why.

When a driver is passing a cyclist in Oregon, the driver must pass at a distance that would enable the driver to avoid hitting the cyclist if the cyclist were to fall into the driver’s lane of traffic. OK, so what distance is that?

Well, let’s see…Suppose the cyclist is male and of average height. In the U.S., that would make the cyclist 5’9” (or 69 inches). Rough calculation, let’s say the cyclist plus bicycle gives us a distance of about 77 inches if the cyclist were to fall over into the driver’s lane of traffic. And that doesn’t include any skidding along the road when the cyclist falls. It’s just a rough estimation of the length of cyclist plus bicycle, measured from the cyclist’s tire track.

And that rough estimation is affected by factors like the cyclist’s leg length, bottom bracket height, crank length, saddle height, and so on.

And we expect a passing driver to make this rough calculation in order to make a safe, lawful pass. Now suppose the cyclist is 6’1”? What’s the passing distance now? And suppose the next cyclist is 5’3”? What’s the safe passing distance?

If, as the argument goes, drivers have a difficult time estimating say, a 3-foot passing distance, how much more difficult is it to first calculate the cyclist’s length and then pass at that distance?

I actually don’t believe that it’s that difficult for drivers to estimate 3 feet (or any other distance in feet) when passing, and even if it were difficult, a safe rule of thumb would be to err on the side of caution. Give the cyclist an extra foot or two, just to be sure you’re not passing at less than minimum. But asking drivers to calculate the cyclist’s length and then pass at that distance is fraught with difficulty.

Wouldn’t it make more sense to just tell drivers to give cyclists 7 feet of passing distance, since that seems to be what we’re saying? Of course, there would likely be a howl of protest from drivers across the state if we made 7 feet the safe passing distance. But isn’t that what we’re saying now? And are there any drivers in Oregon who actually do give 7 feet of safe passing distance? In my experience, drivers in Oregon give about the same amount of passing distance as drivers in other states.

One approach to clarifying Oregon law would be to specify that the fall-over distance is a specific number of feet (for example, 7 feet, or 8 feet, or even 9 or 10 feet), and that is the minimum safe passing distance on roadways where the speed limits are at the higher end of speed limits in the state (for example, on roadways where the speed limit is 50 MPH or higher).

  • Eliminate exceptions to the law that make it weaker.

Although we imagine that our safe passing law is strong because of the “fluid” minimum safe passing distance, in fact the safe passing law is not as strong as we like to imagine. That “fluid” 6, 7, or more feet of safe passing distance really only applies to drivers who are traveling above 35 MPH.

And there’s a reason for this.

In 2006, Oregon nutrition researcher and triathlete Jane Higdon was struck and killed by a passing logging truck in Eugene, after she attempted to avoid hitting a cyclist who had fallen ahead of her on the roadway. The legislation that resulted from her death was an attempt to avoid similar collisions in the future, by requiring drivers to give the minimum safe passing distance a driver would need to avoid hitting a cyclist if the cyclist were to fall into the driver’s lane of traffic. But transit agencies objected to this fluid minimum safe-passing distance, and wanted an exception.

So aside from the guessing game of calculating Oregon’s minimum safe passing distance accurately, the law itself is riddled with exceptions that make it significantly weaker than at first glance it appears to be.

For example, the law does not apply to drivers who are passing a cyclist who is riding in a bike lane. And because Oregon has a mandatory bike lane law, that means that the safe passing law doesn’t actually protect cyclists anywhere that bike lanes exist.

The law also does not apply to drivers who are operating at 35 MPH or less. Nor does it apply when a driver is passing a left-turning cyclist on the right.

So what is the “minimum safe passing distance” in these circumstances?

There isn’t one. Instead, Oregon’s general safe passing law applies, which requires drivers to pass at “a safe distance.”

Right back where we started from, with drivers deciding how much space is “safe” to give us on the roads.

Oregon needs a minimum safe passing distance law that actually protects Oregon’s cyclists. It’s time to eliminate these exceptions that make the law weaker.

  • Link passing distance to passing speed.

Passing distance is an important factor for cyclist safety. But so is passing speed. For example, consider the difference between a 3-foot pass made at 25 MPH, and a 3-foot pass made at 50 MPH. 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.  Oregon’s safe passing law can be improved by linking passing distance to passing speed.

New Hampshire has done this by requiring drivers to give a minimum of 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 Oregon. Here’s how we can make our laws work to protect cyclists:

    • Define a cyclist’s fall-over distance as a specific number somewhere between 6 and 10 feet. Make this the minimum safe passing distance on roads with speed limits 50 MPH or higher.
    • At speeds below 50 MPH, link passing distance to driver speed:
      • For speeds below 30 MPH, make 3 feet the minimum safe passing distance.
      • For roads where there isn’t sufficient space to give a cyclist a minimum of 3 feet safe passing distance, require drivers to slow to 15 MPH and pass at a “safe distance.”
      • For speeds below 40 MPH, make the minimum safe passing distance 4 feet.
      • For speeds below 50 MPH, make the minimum safe passing distance 5 feet.
      • At 50 MPH and above, make the minimum safe passing distance the cyclist’s fall-over height, defined as a specific number somewhere between 6 and 10 feet.
  • Change lanes to pass.

A minimum safe passing distance is better than a “safe passing distance,” because it eliminates the arguments of careless drivers that a close pass was “safe” and “legal.” But it would be even better if the law required drivers to change lanes to pass a cyclist when there is an available lane. When a lane is too narrow to safely share, it is safer for the driver to pass by changing lanes than to attempt to squeeze past the cyclist 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 a double-yellow line to give a cyclist more room when drivers can safely cross the double yellow line. This should be the law in Oregon.

  • Make passing collisions prima facie evidence of an unsafe 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. Oregon’s safe passing law 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, and therefore, in violation of the law. 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.

  • 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 carelessly shaved the passing distance too close. 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. The behavior of the driver and the passenger are the difference between a careless close pass and an intentional close pass. When a close pass is intentional, watch for evidence of intent like the driver swerving towards the cyclist, or aggressive behavior or gestures from the driver and/or passengers, or laughter from the driver and/or passengers. These types of behaviors indicate that the close pass was intentional, rather than careless. When a driver buzzes a cyclist, the driver is committing assault, and should be prosecuted. Oregon’s safe passing law can be improved by making intentional close passes a crime.

Why a Strong Safe Passing Law is Important

Safe passing laws have always required drivers to pass cyclists at a safe distance. Unfortunately, drivers have tended to interpret “safe distance” as whatever distance they choose to pass at, often making resulting in very unsafe close passes. And law enforcement officers have tended to treat passes as legal, regardless of how close the pass was, unless the cyclist was hit.

But waiting until the cyclist is hit before enforcement begins misses the entire point of requiring passes to be at a “safe distance.” And even then, a driver could argue that they did pass at a safe distance, but the cyclist made a mistake and got hit. You know, like the driver passed at 6 inches and the cyclist got startled and deviated a few inches from a straight line and got hit—”the cyclist made a mistake.”

Minimum safe passing distance laws are an improvement over safe passing laws that leave the definition of “safe passing distance” to the individual driver, because nobody can argue that 2 feet or even 1 foot is safe or legal when the law says that it is not safe and not legal.

And because the law specifies a minimum safe passing distance, the laws are enforceable before a cyclist gets hit. Law enforcement officers have proven that safe passing laws can be enforced when a minimum safe passing distance is specified.

Minimum Safe Passing Distance laws are important, so it’s important to get them right. Oregon’s minimum safe passing law got the conversation started in Oregon, but isn’t nearly as strong as it needs to be. It’s time to set that error straight by making it easier for good drivers to legally pass cyclists, making it easier to enforce the law against careless drivers, and making it easier to prosecute dangerous drivers.

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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 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: 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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