1: Strengthen California’s Safe Passing Law

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 6! five improvements we can make to California’s bicycle laws.

1. Strengthen California’s Safe Passing Law.

It took for-everrr to get a safe passing law passed in California. Not for lack of trying. Then-State Senator (and now U.S. Representative) Alan Lowenthal was a staunch and persistent champion of the law, but then-Governor Jerry Brown, who claimed that “bicycle safety [is] a goal I wholeheartedly support” the first time he vetoed a safe passing law, proved almost as persistent in opposing any law that would hold aggressive and unsafe drivers accountable for their punishment passes.

Almost as persistent, because a safe passing law was finally passed, after Governor Brown apparently ran out of imaginary provisions of the law he could object to.

However, while California finally had a safe passing law on the books, it was a significantly weakened law, thanks to Governor Brown’s repeated vetoes of previous versions of the law.

We can change that. California has a new Governor, who may be less inclined to invent imaginary objections to a strong safe-passing law than his predecessor. So far, Governor Newsom has proven a disappointment, vetoing a “Complete Streets” bill that would have—Shock! Horrors!—required CalTrans to consider bicycle and pedestrian safety improvements when it repairs state routes that are also local streets (for example, 19th Ave. in San Francisco, and Santa Monica Boulevard in Los Angeles).

But that doesn’t mean he’s beyond redemption. He’s still early in his first term. We can and should give him another chance to get bicycle safety right. Here’s what we can do to strengthen California’s safe passing law:

  • Eliminate exceptions to the law that make it weaker.

California’s safe passing law requires drivers to give cyclists a minimum of 3 feet safe passing distance.

Unless there isn’t enough room in the lane to give 3 feet safe passing distance. Then drivers don’t have to give 3 feet safe passing distance.

As originally written, the legislation allowed drivers who were traveling at less than 15 MPH to give less than 3 feet passing distance, but Governor Brown objected to that 15 MPH provision and vetoed the bill. The next version of the bill allowed passing drivers to cross over a double yellow line when safe to do so in order to give a cyclist 3 feet of safe passing distance. Governor Brown also objected to that provision and again vetoed the law.

The legislation that finally became California’s safe passing law requires drivers to give a minimum of 3 feet of safe passing distance, unless the driver is unable to comply “due to traffic or roadway conditions,” in which case the driver must slow to “a speed that is reasonable and prudent,” and “may pass only when doing so would not endanger the safety of the operator of the bicycle.”

In other words, 3 feet to pass is the law, except it isn’t.

We can make it the law, however, by eliminating the exceptions to the law that give aggressive and unsafe drivers an out. The way to do this is to make the minimum safe passing distance 3 feet, and requiring drivers to either slow and wait until there is a 3 foot passing distance available, or to slow to 15 MPH when there isn’t a 3 foot passing distance available. You know, like the law originally intended.

  • Clarify that the law also applies to drivers passing cyclists in bike lanes.

Remarkably, the law is unclear when it comes to bicyclists riding in a bicycle lane. Nobody knows for sure if the law requires drivers to give cyclists 3 feet of safe passing distance if they are riding in a bicycle lane. The law should be amended to clarify that cyclists in bike lanes are also protected by the safe passing law, before the law is misinterpreted to deny a cyclist justice.

  • 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.  California’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 California.

  • Change lanes to pass.

A 3-foot minimum safe passing distance is better than nothing. 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.

This is always legal, except on two lane roads divided by a double yellow line. But some state laws explicitly allow drivers to cross over the double yellow line (when it can be safely crossed) to pass a cyclist. One of the bills Governor Brown objected to allowed drivers to do just this.

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 over the double yellow line to pass when it is safe to do so. This should be the law in California.

  • 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. California’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. California’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, with drivers often making very unsafe close passes. And law enforcement officers have tended to treat all 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, a “mistake” like the driver passed at 6 inches at speed 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—often called “3-foot passing” 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. California’s 3-foot minimum safe passing law got the conversation started in California, but it 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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