The “Bicycles and The Law” column in the last issue of Oregon Cycling contained a legal analysis supporting the premise that bicyclists are not subject to Oregon’s slow moving vehicle law, contained in Oregon Revised Statute (ORS) 811.425.1 The basic legal premise of the article was that bicyclists could not be charged with a law applicable to “driving” a vehicle because bicyclists “ride” or “operate” their bicycles.2 However, on November 13, 2002, the Oregon Court of Appeals provided clear legal direction on this issue that bicyclists are subject to certain vehicle laws that regulate “drivers.”
In State of Oregon v. Potter, Judge Kistler reviewed a Critical Mass rider’s conviction for impeding traffic. That law provides “a person commits the offense of impeding traffic if the person drives a motor vehicle or a combination of motor vehicles in a manner that impedes or blocks the normal and reasonable movement of traffic.” ORS 811.130(1). At trial, the defendant argued that the statute only applied to motor vehicles. ORS 801.360 defines a motor vehicle as “a vehicle that is self-propelled or designed for self propulsion.” Clearly, a bicycle is not a motor vehicle. “Bicycle” is defined as a “vehicle” that is “propelled exclusively by human power.” ORS 801.150(4). However, ORS 814.400 provides:
“(1) every person riding a bicycle on 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.”
The court reasoned that because the text of the impeding traffic statute fails to exclude bicycles then it applies to all vehicles, including bicycles.
The court’s holding makes sense in that it seems right that bicyclists should be held legally accountable for holding up traffic, and in the process the new ruling places the Critical Mass rides on shaky legal ground. Yet, civil disobedience has never depended on its legal foundation to determine its necessity or worth. Instead, the nature of civil disobedience is to break the law because some higher calling demands it. It is noteworthy that this decision from the Oregon Court of Appeals occurred at the same time as a letter was written by the Portland Wheelman Touring Club that distances Oregon’s oldest and largest bicycle club from Critical Mass. Bicyclists who complain about the negative effect Critical Mass has on mainstream attitudes about bicyclists are answered in response by Critical Mass advocates that the revolution will never be “convenient”.
The Potter decision also calls into question some of the logic from the last “Bicycles And The Law” column. First, the “Bicyclist’s Bill of Rights” contained in ORS 814.430 specifically provides in paragraph (c) that bicyclists are not excused from compliance with the requirements of ORS 811.425 (the slow-moving vehicle law)3 (3) The offense described in this section, improper use of lanes by a bicycle, is a Class D traffic infraction. However, Oregon courts have not provided a definitive legal analysis of the relationship between the two laws. It is quite likely that these statutes would be interpreted to allow bicyclists to stay in the travel lane, even if it means holding up overtaking vehicles so long as surface hazards prevent the riders from moving in safety off the main traveled portion of the roadway. After all, ORS 811.425 provides that a bicyclist must only move into areas that are “sufficient for safe turnouts.” If the roadway contains glass, gravel, rough spots, or other hazards, the bicyclist has a right to take the lane. Further, where a hedge, sign, or other obstruction interrupt the sight line for traffic on driveways or side streets, then the bicyclist may find it necessary to move toward the center of the road in order to remain visible. And, ORS 814.430 (“Bicyclist’s Bill of Rights”) provides other conditions justifying use of the lane:
“(2) A person is not in violation of the offense under this section if the person is not operating a bicycle as close as practicable to the right curb or edge of the roadway under any of the following circumstances:
(c) When reasonably necessary to avoid hazardous conditions including, but not limited to, fixed or moving objects, parked or moving vehicles, bicycles, pedestrians, animals, surface hazards or other conditions that make continued operation along the right curb or edge unsafe or to avoid unsafe operation in a lane on the roadway that is too narrow for a bicycle and vehicle to travel safely side by side.”
While future cases will undoubtedly provide additional guidance on the relationship between the Rules of the Road, one statutory provision does not trump another – our right to the road contained in ORS 814.430 provides us with both a safe haven along the roadway and the right to take the lane when necessary.
It now appears that Oregon’s slow moving vehicle law applies to bicycles. However, in the example in which a driver with a horse trailer complained about bicyclists failing to pull over and allow her to pass in no passing zones along Portland’s NW Skyline Blvd., the Potter decision offers little guidance. What does seem clear is that bicyclists must not impede traffic (ORS 811.130(1)), or fail to yield to faster overtaking vehicles (ORS 811.425) when there is an area sufficient for a safe turnout. The bicyclists on NW Skyline Blvd. are not required to place themselves in a position of danger in order to yield to overtaking vehicles; instead, the riders must use good judgement in finding safe areas to move over as space and conditions allow. What the Potter case does add to the horse trailer example is a warning for riders that unreasonably failing to yield to traffic or overtaking vehicles may trigger a traffic citation and, if the bicyclist goes to trial an acquittal cannot be based upon the rider’s claim that the impeding traffic or slow-moving vehicle laws are inapplicable to bicycle riders. What the Potter case does not change is bicyclists’ right to take the lane when reasonable necessary for safety, even if it means slowing down overtaking vehicles.
1 ORS 811.425 Failure of slower driver to yield to overtaking vehicle; penalty.
(1) A person commits the offense of failure of a slower driver to yield to overtaking vehicles if the person is driving a vehicle and the person fails to move the person’s vehicle off the main traveled portion of the highway into an area sufficient for safe turnout when:
- (a) The driver of the overtaken vehicle is proceeding at a speed less than a designated speed under ORS 911.105;
- (b) The driver of the overtaking vehicle is proceeding at a speed in conformity with ORS 811.105;
- (c) The highway is a two directional, two-lane highway; and
- (d) There is no clear lane for passing available to the driver of the overtaking vehicle.
(2) This section does not apply to the driver of a vehicle in a funeral procession.
(3) The offense described in this section, failure of a slower driver to yield to overtaking vehicle, is a Class B traffic violation.
2 Bicycles are “vehicles” per ORS 814.400.
3 814.430. Improper use of lanes; exceptions; penalty.
(1) A person commits the offense of improper use of lanes by a bicycle if the person is operating a bicycle on a roadway at less than the normal speed of traffic using the roadway at that time and place under the existing conditions and the person does not ride as close as practicable to the right curb or edge of the roadway.
(2) A person is not in violation of the offense under this section if the person is not operating a bicycle as close as practicable to the right curb or edge of the roadway under any of the following circumstances:
- (a) When overtaking and passing another bicycle or vehicle that is proceeding in the same direction.
- (b) When preparing to execute a left turn.
- (c) When reasonably necessary to avoid hazardous conditions including, but not limited to, fixed or moving objects, parked or moving vehicles, bicycles, pedestrians, animals, surface hazards or other conditions that make continued operation along the right curb or edge unsafe or to avoid unsafe operation in a lane on the roadway that is too narrow for a bicycle and vehicle to travel safely side by side. Nothing in this paragraph excuses the operator of a bicycle from the requirements under > ORS 811.425 or from the penalties for failure to comply with those requirements.
- (d) When operating within a city as near as practicable to the left curb or edge of a roadway that is designated to allow traffic to move in only one direction along the roadway. A bicycle that is operated under this paragraph is subject to the same requirements and exceptions when operating along the left curb or edge as are applicable when a bicycle is operating along the right curb or edge of the roadway.
- (e) When operating a bicycle alongside not more than one other bicycle as long as the bicycles are both being operated within a single lane and in a manner that does not impede the normal and reasonable movement of traffic.
- (f) When operating on a bicycle lane or bicycle path.