Vulnerable Roadway Users

The 2007 Oregon Legislature passed HB 3314, creating an enhanced penalty for careless diving if it contributes to serious physical injury or death to a “vulnerable user of a public way,” and will go into effect January 1, 2008. The purpose of this article is to discuss the Vulnerable User legal concept and its potential for improvement in safety for non-motorized roadway users such as bicyclists and pedestrians. Earlier this year, I wrote about the need for enhanced protection for vulnerable roadway users. See Cycling Injuries & Law Change, from the Winter 2007 issue.

“Vulnerable Roadway User”: A European Safety Concept
The concept of “vulnerable roadway user” has been used by planners and safety organizations in Europe to categorize and describe non-motorized roadway users. The label is a nice one because it incorporates the inherent vulnerability of humans who use the roads without being encased in a protective steel shell. Inclusion of the concept of vulnerability evokes a more sympathetic image and focuses on the shared vulnerability of these different user groups. By including vulnerable users within a single term, the requirement for protection is brought to mind to counterbalance the somewhat natural reaction some people have to improving safety by restricting access, such as by restricting bicycle access to freeways or pedestrian crossings or road access.

No state has ever used the Vulnerable Roadway User concept as a legal term, but for the reasons above stated, the members of the Bicycle Transportation Alliance (BTA) Legislative Committee felt it could focus the need for enhanced protection of vulnerable user groups (who are reducing energy consumption and pollution, while improving their own good health and fitness). Since people need to get out of their cars and walk or roll under their own power, some enhanced protection is necessary to get law enforcement and the court system participating in protecting and encouraging kids to walk to school, commuters to ride a bike, and the use of a skateboard or scooter instead of getting a ride or driving a car to run an errand.

It was our view that Oregon law was far too lenient in punishing careless drivers who receive merely a fine and are not even required to make a court appearance after a horrific collision. Some police officers and medical personnel have even been heard to argue that people who choose not to ride in a car should expect to have bad things happen because the roadways are so dangerous. To us, tolerating the status quo was not acceptable – it was time to change the law and create a zone of protection instead of indifference toward those people brave enough to use their bodies to get around.

Political Realities and Difficulties
When we first introduced the idea of an enhanced penalty for careless drivers who hurt vulnerable users, key legislators told us that any effort to create new crimes and inmates for our already overburdened state court and corrections system would face widespread resistance. Further, our effort to include motorcyclists within the definition of Vulnerable Roadway User was criticized and motorcyclists were then excluded, even though the American Motorcyclist Association (AMA) “Motorcylists Matter” campaign was a pioneer in the enhanced penalty area. On the other hand, we were pleased to include highway workers [Note that Maryland has increased penalties for highway workers and only highway workers] and rural folks moving equipment or astride animals within the definition. See inset below (HB 3314).

It was extremely difficult to create an enhanced penalty when further criminal consequences were not an option, but BTA legislative committee member Doug Parrow tweaked our original language to include a non-criminal alternative of a $12,500 fine (up from $750.00) and a one-year license suspension (no license suspension was previously included in a conviction for Careless Driving). Additionally, to create an inducement for careless drivers to improve their driving skill and pay the community back for their actions, a traffic safety course requirement and 100-200 hours of community service were included as an alternative to the fine and suspension – if the program is successfully completed, then the suspension and fine would be suspended.

While some in the bicycle community saw the penalties as insufficient, we felt it was a great improvement on the status quo. We also added a requirement requested by victim families that careless drivers be required to make a court appearance in front of a judge to face the charges instead of merely sending a check in the mail.

Preliminary reviews of our non-criminal alternative by law enforcement personnel were somewhat favorable because it provided an additional charging option. Police officers and prosecutors told us they were sometimes frustrated in serious accident cases because Oregon did not have a vehicular homicide law and its criminally negligent homicide law requires a gross deviation from the standard of care, which is close to a recklessness requirement. The Vulnerable User law provided a way to create real consequences for careless or negligent drivers without sending them to jail.

We quickly learned after legislative hearings on our bill that the testimony of families and victims was critical in creating legislative support. We also discovered that creating a new legal concept within the existing statutory structure required amending a considerable number of other statutes (see the attached statutory inset for the amendments to other statutes). The responsibility for administering the program monitoring careless drivers and supervising community service and any fines or license suspensions also had to be assigned to various agencies. Agency legislative staffers were wary that their departments would be required to take on additional work without receiving any additional staff to perform it. However, our forward-looking attempt to solve the careless driver problem for kids trying to get to school and folks trying to work on the state’s highways contributed substantially to rounding up agency representatives willing to help us figure out how to operate the program without costing the state a lot of money. Because we were doing something that had never been, the committee staff and the Legislative Counsel’s office were required to draft and study multiple amendments, so that by the time the Bill wound its way through the legislature it had been amended at least eleven different times, a record in our experience.

Conclusion
When HB 3314 goes into effect January 1, 2008, we will see how effective it is in creating real consequences for bad-driver collisions. We hope that law enforcement will respond to our law by increasing their protective attitude toward kids trying to walk to school and folks trying to ride a bike instead of driving. Before the vulnerable Roadway User law was passed, Oregon law provided only minor consequences for careless driving that really hurt someone. After our law passed the Legislature, a well-known local bicyclist was killed by a driver with a suspended license, and some folks in the bicycle community felt that we had not gone far enough in protecting the state’s riders.

We felt, however, that given the constraints of the political process, we had made a good first step by incorporating a European safety concept into the American legal system, with an enhanced penalty mandating either community service and driver-improvement education, or a substantial fine and a mandatory one-year license suspension. While the Vulnerable User law will likely be challenged in court, we hope it is a good first step toward creating greater consequences for drivers who fail to give Vulnerable Roadway Users their right to use the road.

In the next legislative session we hope to introduce a Vehicular Homicide crime that would include situations where a motorist continues to drive even with a suspended license, as the Vulnerable User penalty will do little to punish someone who has no driver’s license and no money to pay the fine. One underlying problem for American safety activists is that over the last 40 years citizens have been encouraged by media and the government to believe that driving a car is a right instead of a privilege. The percentage of serious injury or death collisions caused by suspended and unlicensed drivers is unacceptable and should provide a basis for passage of additional criminal consequences in order to get these drivers off of the streets.
House Bill 3314

SUMMARY
Increases penalty for offense of careless driving if commission of offense contributed to serious physical injury or death of vulnerable user of public way. Requires person committing offense to complete traffic safety course and perform 100 to 200 hours of community service related to driver improvement. Directs court to impose, but suspend on condition that person complete safety course and community service requirements, fine of up to $12,500, suspend person’s driving privileges and set hearing date up to one year from date of sentencing to determine person¢s compliance with requirements. Requires police officer issuing citation for offense of careless driving to note on citation if cited offense contributed to serious physical injury or death of vulnerable user of public way. Requires defendant who has been issued citation to make first appearance by personally appearing in court at time indicated in summons.

A BILL FOR AN ACT
Relating to vehicular contact with vulnerable user of a public way; creating new provisions; and amending ORS 41.905, 153.061, 153.090, 153.099, 809.280 and 811.135.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Section 2 of this 2007 Act is added to and made a part of the Oregon Vehicle Code.

SECTION 2. “Vulnerable user of a public way” means a pedestrian, a highway worker, a person riding an animal or a person operating any of the following on a public way, crosswalk or shoulder of the highway:

(1) A farm tractor or implement of husbandry without an enclosed shell;

(2) A skateboard;

(3) Roller skates;

(4) In-line skates;

(5) A scooter; or

(6) A bicycle.
SECTION 3. ORS 811.135 is amended to read:

811.135. (1) A person commits the offense of careless driving if the person drives any vehicle upon a highway or other premises described in this section in a manner that endangers or would be likely to endanger any person or property.

(2) The offense described in this section, careless driving, applies on any premises open to the public and is a Class B traffic violation unless commission of the offense contributes to an accident. If commission of the offense contributes to an accident, the offense is a Class A traffic violation.

(3) In addition to any other penalty imposed for an offense committed under this section, if the court determines that the commission of the offense described in this section contributed to the serious physical injury or death of a vulnerable user of a public way, the court shall:

(a) Impose a sentence that requires the person to:

(A) Complete a traffic safety course; and

(B) Perform between 100 and 200 hours of community service, notwithstanding ORS 137.129. The community service must include activities related to driver improvement and providing public education on traffic safety;

(b) Impose, but suspend on the condition that the person complete the requirements of paragraph (a) of this subsection:

(A) A fine of up to $12,500, notwithstanding ORS 153.018; and

(B) A suspension of driving privileges as provided in ORS 809.280; and

(c) Set a hearing date up to one year from the date of sentencing.
(4) At the hearing described in subsection (3)(c) of this section, the court shall:

(a) If the person has successfully completed the requirements described in subsection (3)(a) of this section, dismiss the penalties imposed under subsection (3)(b) of this section; or

(b) If the person has not successfully completed the requirements described in subsection (3)(a) of this section:

(A) Grant the person an extension based on good cause shown; or

(B) Impose the penalties under subsection (3)(b) of this section.
(5) When a court imposes a suspension under subsection (4) of this section, the court shall prepare and send to the Department of Transportation an order of suspension of driving privileges of the person. Upon receipt of an order under this subsection, the department shall take action as directed under ORS 809.280.

(6) The police officer issuing the citation for an offense under this section shall note on the citation if the cited offense contributed to the serious physical injury or death of a vulnerable user of a public way.

SECTION 4. ORS 809.280 is amended to read:

* * * *

(13) When a court orders suspension of driving privileges under ORS 811.135, the department shall immediately suspend all driving privileges of the person for one year.

SECTION 5. ORS 153.061 is amended to read:

153.061. (1) Except as provided in subsection (2) of this section, a defendant who has been issued a violation citation must either:

(a) Make a first appearance by personally appearing in court at the time indicated in the summons; or

(b) Make a first appearance in the manner provided in subsection [(2)] (3) of this section before the time indicated in the summons.
(2) If a defendant has been issued a violation citation for careless driving under ORS 811.135 on which a police officer noted that a vulnerable user of a public way suffered serious physical injury or death, the defendant must make a first appearance by personally appearing in court at the time indicated in the summons.

<a href="http://www.oregoncycling.org/2007/10/vulnerable-roadway-users/">http://www.oregoncycling.org/2007/10/vulnerable-roadway-users/</a>;