What every Oregon bicycle rider needs to know about the new distracted driving law

On October 1, 2017, Oregon’s new distracted driving law went into effect. The law increases its coverage and raises the penalties for violation. Here are a few things every Oregon bicycle rider should know about the new law.

Does the New Distracted Driving Law Apply to Bicycle Riders?

An earlier version of this article reflected my mistake in failing to take into account the holding of an Oregon appeal case that makes the new “distracted driving” law apply to bicycle riders. ORS 811.507 makes it illegal to “operate a motor vehicle while using a mobile communication device” on a “highway or premises open to the public”. While ORS 814.400 states that “a bicycle is a vehicle”, obviously a bicycle is not a “motor vehicle”.

However, the new law applies to you on your bicycle. Oregon appellate law holds that even though a bicycle does not have a motor (except a human one) the Oregon Vehicle Code law still applies unless the text of a particular law “specifically provides” otherwise.  The distracted driving law says “motor vehicle”, but it doesn’t specifically say that it doesn’t apply to bikes.  The Oregon case that reads the law this way is State v.  Potter, 185 Or. App. 81 (2002), which held that the statute that makes the Oregon Vehicle Code apply to bicycles includes bicycles within the “motor vehicle” designation UNLESS the statute specifically excludes bicycles. Bottom line, you can get a ticket for distracted riding under the new statute just like you can get a Careless Driving, speeding or DUI ticket on your bike as well as in a motor vehicle.

ORS 814.400 states:

(1) Every person riding a bicycle upon a public way is subject to the provisions applicable to and has the same rights and duties as the driver of any other vehicle concerning operating on highways, vehicle equipment and abandoned vehicles, except: (a) Those provisions which by their very nature can have no application. (b) When otherwise specifically provided under the vehicle code.

(2) Subject to the provisions of subsection (1) of this section: (a) A bicycle is a vehicle for purposes of the vehicle code; and (b) When the term “vehicle” is used the term shall be deemed to be applicable to bicycles.

(3) The provisions of the vehicle code relating to the operation of bicycles do not relieve a bicyclist or motorist from the duty to exercise due care.

The statute language “When otherwise specifically provided under the vehicle code” in ORS 814.400(1)(b) was held by the Potter case not to be specific enough to exclude bicycles even though common sense tells us that bicycles are not “motorized vehicles”.  This means that the new Oregon distracted driving law does apply to bicycles being ridden on Oregon “highways”.  And the statutory definition of “highway” in ORS 801.305 is very broad and includes “every public way, road, street, thoroughfare and places, including bridges, viaducts and other structures within the boundaries of this state, open, used or intended for use of the general public for vehicles or vehicular traffic as a matter of right.” The broad definition of “highway” means that the law applies to just about every public place a person can legally ride a bicycle.

Does the New Distracted Driving Law Apply to Electric Assisted Bicycles?

If the new distracted driving law applies to bicycles does it also apply to Electric Assisted Bicycles? The Vehicle Code defines “Electric Assisted Bicycle” in ORS 801.258 as a “vehicle” that:

(1) Is designed to be operated on the ground on wheels;

(2) Has a seat or saddle for use of the rider;

(3) Is designed to travel with not more than three wheels in contact with the ground;

(4) Has both fully operative pedals for human propulsion and an electric motor; and

(5) Is equipped with an electric motor that: (a) Has a power output of not more than 1,000 watts; and (b) Is incapable of propelling the vehicle at a speed of greater than 20 miles per hour on level ground.

Now recall the determination discussed above in the Potter case that the Oregon Vehicle Code applies to bicycles unless the statute specifically exempts them. Potter cites ORS 814.400 as authority for its holding because the statute states “1. Every person riding a bicycle upon a public way is subject to the provisions applicable to and has the same rights and duties as the driver of any other vehicle concerning operating on highways ***, except: (b) When otherwise specifically provided under the vehicle code.” Under Potter, bicycles, including e-bikes, would appear to be within the distracted driving law because that law applies to “motor vehicles” but does not “specifically provide” that it doesn’t cover bikes.  This is especially true because e-bikes have motors, however small.

But the legislature has thrown in an important wrinkle. The statute defining the “legal status” of Electric Assisted Bicycles appears to exclude e-bikes from the reach of all statutes that apply to “motor vehicles”, including the distracted driving statute.  ORS 814.405 — Status of Electric Assisted Bicycle — states:

An electric assisted bicycle shall be considered a bicycle, rather than a motor vehicle, for purposes of the Oregon Vehicle Code, except when otherwise specifically provided by statute.

Since ORS 814.405 says an e-bike “shall be considered a bicycle rather than a motor vehicle” it literally puts us back at the start of the Potter analysis – an e-bike is a “bicycle,” not a “motor vehicle.”  So does “rather than a motor vehicle” specifically provide an exemption for e-bikes?

We think the most likely outcome is that e-bikes will be excluded from the application of statutes that say “motor vehicle,” like the new distracted driving law. The odd result is that some Oregon Vehicle Code statutes will apply to regular bikes but not to e-bikes. However, it’s hard to argue that 814.405’s “rather than a motor vehicle” language doesn’t “specifically provide” (814.400) that an e-bike is not subject to laws that say they apply to “motor vehicles”, since 814.405 specifically provides that an e-bike is not a motor vehicle. No guarantee, though, because the Potter construction and 814.405 are truly not resolvable in any sensible way.

Bottom line, the new distracted driving statute applies to “motor vehicles”, and ORS 814.405 “specifically provides” that an e-bike is a bicycle rather than a motor vehicle, hence not a motor vehicle. While the statute is clear the legislature didn’t want an e-bike to be treated as a motor vehicle, the reasoning is maddeningly circular in light of the Potter decision. This probably calls for a legislative “fix” to ORS 814.405 to more clearly state the legislature’s intentions if they want to prohibit e-bike riders from using mobile electronic devices.  For now, it appears e-bike riders may not be within the legal reach of Oregon’s new distracted driving law.

Why Did We Need a New Distracted Driving Law?

This may seem like a dumb question for a bicycle rider or pedestrian. Since we are vulnerable users we know all too well the consequences of having drivers who are watching their cellphone screens attempt to drive around us. Since we are not encapsulated inside a steel compartment looking at the world through safety glass we see the shocking number of drivers who are attempting to maneuver their cars and trucks down the streets we are using while being completely tuned out to anything but what is on the screen before them. And the statistics confirm how deadly this behavior becomes for everyone. More than 4,000 crashes were caused by distraction in Oregon in 2014. And between 2011 and 2015 there were 54 fatalities and 15,150 injuries in Oregon caused by distracted drivers (see ODOT’s 2014 Oregon Traffic Crash Summary).

In February 2017 an ODOT Interdisciplinary Study was published with important findings about distracted driving, including that while 84% of respondents felt uncomfortable with a driver who was distracted, 75% admitted to doing it while alone and 44% admitted to driving distracted with passengers, and this was just for those folks who responded. Ask any rider on the street and the numbers seem far higher.  The reasons are complex but the study relates that skewed reward seeking behavior patterns exist due to several causes, most notably a lack of negative legal consequences or negative social pressure. The bottom line is that humans get a lot of useful and fun stuff by using mobile communication devices while driving, from instructions on where to go and how to get there, to checking in with loved ones on the phone, playing Angry Birds (a cultural favorite we are told), to accepting the next fare for Uber drivers and sending important text messages. AND until October 1, 2017 there was little chance distracted driving would result in a traffic ticket unless one got caught doing it during a crash. The study concluded we needed to ratchet up negative consequences by changing the law and increasing education and law enforcement.

In our office we have a case where a pizza delivery driver was checking the driver’s Amazon order while he made the nightly cash run to the bank and failed to see a helpless pedestrian who had fallen directly in front of him in the road with fatal consequences. That moment of inattention resulted in the loss of life of a father leaving behind devastated family and a pregnant fiancé. The driver was charged and convicted of  Vulnerable User Careless Driving and Distracted Driving but those consequences do next to nothing to reconcile the disaster he caused. And the only reason he was charged was because a hard working motorcycle officer took the time to analyze what was on his cell phone. In most collisions, the distracted driving is never discovered because law enforcement resources are stretched so thin in investigating crashes.

The law until October 1, 2017 was murky. While it was illegal to drive while holding a cellphone, an August 2015 Oregon Court of Appeals decision held that the enforcement limits of the old law did not include use of a GPS or music device so that an Oregon State Police officer could not pull a driver over unless it was established that a cellphone was being used. The resulting confusion in application of the law led to creation of the Distracted Driving Task Force which recommended that the law be changed to expand its scope and include the deterrent of the risk of a ticket into the decision to use a mobile device while driving, even if it was not a telephone.

What Does the New Law Prohibit?

HB 2597 created the changes to ORS 811.507 that greatly expand its application. The new law applies to any “Mobile Electronic Device” that is “not permanently installed in a motor vehicle.” And the definition includes a “device capable of text messaging, voice communication, entertainment, navigation, accessing the Internet or producing electronic mail.” And the prohibition extends not just to moving but also to being “temporarily stationary because of traffic, a traffic control device or other momentary delays.” The exceptions include when making an emergency call or when pulled off the roadway or parked.

Prohibited actions include using the device if the driver is not able to “keep both hand hands on the steering wheel.” Presumably, if the device is permanently built in to the motor vehicle or the driver is able to use it hands free then it is okay, which allows voice activation of a mobile device but only if the person is 18 years or older. However, in order to type in an address or query you have to pull over and park. There is also a somewhat unclear exception built in to the law as it allows a person to “activate or deactivate” a device or “a function of the device” which has been described as including a “single touch or swipe.” It has been argued that this exception will allow Uber and Lyft drivers to swipe and accept a fare while driving, a legal assertion that has not yet been tested in court.

What Are the Negative Consequences of Violating the New Law?

For a first offense, there is a presumptive fine of $260.  A distracted driving course option, if offered, will reduce the fine but not make the conviction on the driver’s record go away. For a second offense or first offense which causes a crash, the presumptive fine is $435.  For the third offense in ten years, the charge becomes a Class B misdemeanor traffic crime which may include up to a six month sentence in the county jail. These are some very negative consequences! And the driver’s insurance company will undoubtedly cause a substantial increase in the cost of future liability insurance which adds additional substantial financial penalties.

2017 ORS 811.507

The new law provides:

(1)  As used in this section: (a) “Hands-free accessory” means an attachment or built-in feature for or an addition to a mobile electronic device, whether or not permanently installed in a motor vehicle, that when used allows a person to keep both hands on the steering wheel. (b) (A) “Mobile electronic device” means an electronic device that is not permanently installed in a motor vehicle. (B) “Mobile electronic device” includes but is not limited to a device capable of text messaging, voice communication, entertainment, navigation, accessing the Internet or producing electronic mail. (c) “Using a mobile electronic device” includes but is not limited to using a mobile electronic device for text messaging, voice communication, entertainment, navigation, accessing the Internet or producing electronic mail.

(2) A person commits the offense of operating a motor vehicle while using a mobile electronic device if the person, while operating a motor vehicle on a highway, uses a mobile communication device. (a) Holds a mobile electronic device in the person’s hand; or (b) Uses a mobile electronic device for any purpose.

(3) This section does not apply to a person who: (a)  Uses the mobile electronic device to communicate if the person: (A) Is summoning medical or other emergency help if no other person in the vehicle is capable of summoning help; or (B) Is operating an ambulance or emergency vehicle while acting in the scope of the person’s employment; or (b) Is 18 years of age or older and is using a hands-free accessory.

(4) The offense described in this section, operating a motor vehicle while using a mobile electronic device, is: (a) For a person’s first offense, a Class B traffic violation unless commission of the offense contributes to an accident. (b) For a person’s second or subsequent offense within a 10-year period, a Class A traffic violation. (c) If commission of the offense contributes to an accident, a Class A traffic violation.

(5)(a) For a first offense of operating a motor vehicle while using a mobile electronic device, the court may conditionally suspend the execution of the fine to be imposed under subsection (4)(a) of this section if the defendant appears personally and agrees to complete at the defendant’s own expense, within 120 days of the date of sentencing, a distracted driving avoidance course approved by the Department of Transportation under section 3 of this 2017 Act. (b) If the court conditionally suspends execution of all or part of the fine under paragraph (a) of this subsection, the court shall set a hearing date not less than 120 days from the date of sentencing. At the hearing the court may: (A) If the person has successfully completed the requirements described in paragraph (a) of this subsection, suspend execution of the fine imposed under subsection (4)(a) of this section; or (B) If the person has not successfully completed the requirements described in paragraph (a) of this subsection, grant the person an extension based on good cause shown.

(6) The Department of Transportation shall place signs on state highways to notify drivers that violation of this section is subject to a maximum fine of $2,000.

What Law Enforcement Officers Are Saying About the New Law

For a view into how law enforcement officers look at the new law, the enforcement parameters, and some common sense views on its application, listen to this recent podcast on Jefferson Public Radio:

Oregon Cracks Down on Cell Use in Cars October 1 (9/25/2017)