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Thursday, October 30 2014 @ 06:10 PM UTC

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A FULLER DESCRIPTION OF THE CONTRIBUTORY NEGLIGENCE PROBLEM FOR BICYCLISTS

Bike LawsB' Spokes: DC and Maryland both have the contributory negligence doctrine. For those interested in learning more, this is what Shane Farthing from WABA has but together:

http://www.waba.org/blog/2014/10/a-fuller-description-of-the-contributory-negligence-problem-for-bicyclists/
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Crossing A Double Yellow Line

Bike Laws by Eli Damon, Co-author: Steven Goodridge, I am Traffic

...
How did we get here?
...
In response to motorist errors, traffic engineers began marking no-passing zones in areas where the sight distance was inadequate to safely pass a vehicle traveling just below the maximum posted speed limit.
...
Over time, solid centerlines proliferated over a larger percentage of roadway miles. Engineers marked them extending out several hundred feet from intersections, in areas with driveways, and anywhere else that the engineers considered unsafe for passing, particularly at high speed. The formulas and tables used to determine where to place solid centerlines assumed that the vehicle being passed was traveling near the maximum posted speed limit1, so that dashed center lines, indicating permission to pass, became quite rare. On many two-lane roads, solid centerlines continue for miles at a time, with no dashed sections at all.
...
The markings that traffic engineers placed on most miles of two-lane roads did not communicate a reasonably convenient process for passing low-speed vehicles.
...

What’s the problem?

In most of the United States, a motorist is not clearly permitted to cross a solid centerline to pass a cyclist when it is safe to do so. Yet practically all drivers do so rather than continue to follow the cyclist at reduced speed. Drivers recognize that current striping policies for no-passing zones are overly restrictive in the context of low-speed vehicles. Mathematical analysis bears this out. For instance, safely passing a motorist traveling at 35 mph on a 45 mph road requires a sight distance 600 feet longer than passing a 15 mph bicyclist on the same road.
...

The legal ambiguity around crossing a solid centerline line is a source of conflict for cyclists, motorists, police officers, and driving instructors. Motorists can be unnecessarily inconvenienced because they believe that they are not allowed to pass a cyclist. Their frustration can lead to resentment and hostility toward cyclists. It can even lead to riskier behavior and crashes. A motorist might honk or yell at cyclists or might buzz them to avoid crossing a solid centerline. In the worst cases, motorists have attempted to squeeze past cyclists within the same lane and fatally struck the cyclists.
...

Can we fix this thing?
...

Model No-Passing-Zone Exception

When passing a pedestrian, bicycle, tractor, or other slow moving vehicle, the operator of a vehicle may drive on the left side of the center of a roadway in a no-passing zone when such movement can be made in safety and without interfering with or endangering other traffic on the highway.
...

We ask that legislators modernize their passing laws to reflect safe and practical passing practices, and that cycling advocates make a priority of lobbying them to do so.
...

http://iamtraffic.org/engineering/crossing-double-yellow-line/
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5 WAYS TO IMPROVE 3 FOOT PASSING LAWS

Bike LawsBy Rick Bernardi, BicycleLaw.Com

1. Eliminate exceptions to the laws that make them weaker:
...

2. Link passing distance to passing speed:
...

3. Change lanes to pass:
...

4. Make passing collisions prima facie evidence of an illegal pass:
...

5. Criminalize buzzing:
...

http://www.bicyclelaw.com/blog/index.cfm/2014/9/16/Five-Ways-to-Improve-3-Foot-Passing-Laws
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KC considers law against street harassment of walkers, cyclists and others

Bike LawsBY MIKE HENDRICKSTHE KANSAS CITY STAR

...
Whether it’s crude remarks shouted from car windows at mothers walking their kids to school, or bicyclists nearly squeezed off the road by angry motorists not interested in sharing it, such all-too-common acts of intimidation do more than make the targets fearful.

They also undermine initiatives aimed at fighting obesity and encouraging alternative forms of transportation here and across the nation.

Which is why Kansas City could soon be joining a growing number of communities that have enacted anti-harassment ordinances that impose fines and jail sentences on perpetrators found guilty of street harassment.
...

http://www.kansascity.com/news/government-politics/article2107031.html
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Finally some progress on "bikes must ride right if they are slow"

Bike LawsBy B'Spokes,

Our story goes back to when Anne Arundel County introduced the "Bikes May use the Full Lane" sign and MDOT erroneously added that only cyclists traveling near the speed limit can "take the lane" slower cyclists on the other hand "must" ride far right as possible/practicable. Because basically MDOT said "Oh look, here is a way of looking at the law no one has thought of before," - Well that should have been a warning sign right there, but they decided to defend their position in my conversations with them, so I had to look for other solutions.

This was not the first time MDOT decided to go outside of what I'll call the canon of bicycle safety advice, which I outlined in this story: The best of MDOT's WTF

To demonstrate why MDOT's position was so grievous, let's say the ride side of the road has some issue that is covered by one of the exceptions to our ride right law, like debris or uneven pavement. Bicycle law says we can legally ride further left to avoid these kind of issues but slow moving vehicle law as interpreted by MDOT says we can't. Let me stress it is their interpretation at issue here, I see no conflict between the two per the letter of the law.

So for me it came down to: Does bicycle law clarify the slow moving vehicle law for cyclists or does slow moving vehicle law negate bicycle law and does MDOT have the legal authority to issue an interpretation of law? Or even more grievous does MDOT have the authority to say we are the only state where the Uniform Vehicle Code says something different then other states with the Uniform Vehicle Code?

I hope you can see when put in those terms, the issue is outrageous. But when talking about cyclists riding right when bicycle law says they may use the full lane even Vehicular Cyclists says there is a time we can be safe and polite and not put our safety at risk by riding to the right even though the law does not say you have to, this is called "Control & Release" as demonstrated in the following video:

Control and Release on Kirby Avenue Over I-57 in Champaign, IL from Gary Cziko on Vimeo.



The problem is the law does not spell this out (nor should it) so it becomes very hard to get MDOT to put this safety information out to cyclists as they primarily deal with summarizing the law and not safety advice that goes beyond the scope of the law. Additionally do I need to point out ANY summary of the law that is done by dropping words is inaccurate?

Or let me state it this way: I understand the desire of motorists that cyclists should assist in easier passing but it comes down to should MDOT stress (poor/inaccurate) summaries of the law or draw upon known good safety advice? My stance is leave the nitty-gritty of the law to the police and the courts and have MDOT stress the safety side of things.

To that end the last response I got from Secretary James T. Smith seems to be very encouraging. And special thanks to Brian Frosh (who is running for Attorney General and please consider contributing to his campaign) for his help and understanding on this issue. I will note one thing I learned from this, when dealing with MDOT about bicycles it would probably be best to get an elected official involved after the first "We are MDOT and we defend our position" response.

The letter:

From Maryland Department of Transportation - The Secretary's Office

Dear Chairman Frosh:

Thank you for your August 12, 2014 letter regarding whether bicycles are considered "slow moving vehicles." I appreciate you alerting me to the public statements made by the Maryland Department of Transportation (MDOT)on this matter that may have been confusing, and I am happy we were able to clarify the issue for your constituent.

As noted in the email response, there is no hard and fast standard for requiring bicycles to move or stay right on the road. This allows for flexibility and accommodation for real-life circumstances that occur and may not neatly fall under statutory provisions. I am copying State Highway Administrator Melinda Peters as well as Motor Vehicle Administrator Milton Chaffee, who is also the Governor's Highway Safety Representative, on this response so they are aware of this clarification of the rules of the road as they pertain to bicycles. MDOT strives to provide accurate and timely information to Maryland's citizens and will make sure this issue is understood when communicating with the public.
... [Contact information for further clarification if needed]

James T. Smith, Jr.
Secretary

The PDF of the letter.
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Recent bike-related deaths renew safety debate

Bike LawsBy CATHERINE SHEFFO, Capital Gazette

After a rash of high-profile bicycle accidents, Maryland's General Assembly might consider strengthening laws that allow judges to punish careless drivers.

Last month saw the sentencing of a Calvert County driver who hit and killed bicyclist Patricia Cunningham, of Annapolis, while she was riding on Riva Road last year. Cunningham was an assistant track and cross-country coach at Annapolis High School.

A grand jury had charged the driver with four traffic violations. A judge found her guilty of three of them and imposed the maximum penalty: a $1,500 fine, as well as points on her license.

This angered some in the community. Prosecutors and bicycle organizations hope the Cunningham case will spark a debate about Maryland's laws on the rules of the road and the severity of charges that can be brought against reckless drivers.

"We're open to any changes in the law that give individuals the tools for justice," said House of Delegates Speaker Michael E. Busch, D-Annapolis. "If the state's attorneys have any suggestions, we're willing to listen to them."

At the center of the debate is a 2011 Maryland law. The measure aims to establish a middle ground between the longer prison sentences associated with drunken driving and excessive speeding and the fines for minor traffic violations, such as running a red light.

The law uses the term "negligence" to describe the actions of a driver who is careless or not paying attention. Minor negligence is a traffic violation punishable by only a fine. Criminal negligence — legally, a "gross deviation" from careful driving — can carry a sentence of up to three years in prison.

Anne Arundel County Deputy State's Attorney William Roessler said that while the new law is a step in the right direction, juries and judges struggle to determine what should be considered criminal negligence.

Roessler, the prosecutor in the Cunningham case, said the law's wording is too similar to the laws on drunken driving for it to be effective. "It's so close that grand juries and judges are going to hold it to a very similar standard," he said.

"There may very well be a small category of cases, but it's not going to work very much. I haven't seen it yet."

Grand juries decide on how defendants are charged, so the way a law works depends on the way a grand jury interprets it, Roessler said.

In this case, the grand jury decided that defendant Whitney Decesaris' actions didn't amount to criminal negligence. She was charged with traffic violations instead, leading to fines instead of potential jail time.

"The loss from a human standpoint compared to $1,500 … it just seems grossly out of proportion," said Jon Korin of BikeAAA, an area bicycle advocacy group.

Roessler said prosecutors asked lawmakers to amend the law's wording to better reflect what they wanted it to accomplish. He said delegates were confident the law would work as intended.

Some delegates, however, said the problem is harder to fix than it seems.

"When something bad happens, people want to propose a law, but (Decesaris) didn't obey the current law," said Del. Herb McMillan, R-Annapolis.

McMillan said changing the law won't force people to follow the rules of the road that keep cyclists safe — namely, allowing 3 feet when passing at appropriate speeds.

"I don't really know what to think, aside from this was a tragic accident," he said. "I'm not sure a law new could have fixed it."

Busch said this is the first he has heard of attorneys having problems with the law, and lawmakers will consider working with prosecutors to make it more effective.

Meanwhile, bicycle advocates said harsher penalties for careless drivers are the key to reducing injuries and deaths.

"Enforcement is important," Korin said. "You can do education, but enforcement is a very, very critical element of changing behavior."

He expects the state level of BikeAAA to discuss legislative changes it may take to the legislature.

"It's a conversation that needs to be had so that proper charges can be applied."


http://touch.capitalgazette.com/#section/-1/article/p2p-81045583/
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Do cyclists get a fair shake with the law?

Bike LawsIt just came to my attention that Whitney Decesaris was never charged with this:

§ 2-210. Manslaughter by vehicle or vessel -- Criminal negligence
. (a) "Vehicle" defined. -- In this section, "vehicle" includes a motor vehicle, streetcar, locomotive, engine, and train.
. (b) Prohibited. -- A person may not cause the death of another as the result of the person's driving, operating, or controlling a vehicle or vessel in a criminally negligent manner.
. (c) Criminal negligence. -- For purposes of this section, a person acts in a criminally negligent manner with respect to a result or a circumstance when:
. . (1) the person should be aware, but fails to perceive, that the person's conduct creates a substantial and unjustifiable risk that such a result will occur; and
. . (2) the failure to perceive constitutes a gross deviation from the standard of care that would be exercised by a reasonable person.
. (d) Exception. -- It is not a violation of this section for a person to cause the death of another as the result of the person's driving, operating, or controlling a vehicle or vessel in a negligent manner.
. (e) Violation. -- A violation of this section is criminally negligent manslaughter by vehicle or vessel.
. (f) Penalty. -- A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 3 years or a fine not exceeding $ 5,000 or both.



Note: this is a misdemeanor charge and not a criminal charge like what the Grand Jury acquitted her of.

Remember Nathan Krasnopoler when the police refused to acknowledge the law that gave cyclists the right-of-way in a bike lane? It looks like something similar is going on here.
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Maryland lawmakers vote to increase penalties for drivers using cellphones

Bike LawsBy Jenna Johnson, Washington Post

The Maryland General Assembly approved legislation Monday that will stiffen penalties for drivers who cause fatal or serious crashes while talking on a cellphone or texting. The legislation now goes to the governor to be signed.

The Maryland House of Delegates and Senate had passed different versions of the legislation, but in a compromise reached on the last day of the session, lawmakers agreed to these conditions: The law would apply to drivers using a cellphone in a variety of ways, not just texting. Those found guilty would face up to one year in jail and a fine of as much as $5,000. And prosecutors could charge drivers with this law in addition to other laws.
...

http://www.washingtonpost.com/local/md-politics/maryland-lawmakers-vote-to-increase-penalties-for-drivers-using-cellphones/2014/04/07/188b8470-be9b-11e3-b574-f8748871856a_story.html
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House OKs jail time for drivers who kill while on cell phones

Bike LawsBy Michael Dresser, Baltimore Sun

The House of Delegates approved a bill Friday that would allow a judge to give up to a year's sentence to a driver who negligently kills or seriously injures someone while texting or speaking on a hand-held cellphone.
...

http://www.baltimoresun.com/news/maryland/politics/blog/bal-house-oks-jail-time-for-drivers-who-kill-while-on-cell-phones-20140314,0,4820774.story?track=rss
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So what would it look like if we had to obey both cycling laws and slow moving vehicle laws?

Bike LawsIntro:

So in my conversations with SHA they stated something along the lines "You don't get to pick and choose what traffic laws you have to obey. So slow moving vehicle laws apply to cyclists." But I've always looked at cycling laws as a of clarification of slow moving vehicle law for cyclists. Slow moving vehicle law has "right-hand lane" or "as close as practicable to the right" and cycling laws basically have the same thing but with better explanations when one or the other can be applied. Not to mention the abundance of material that explains how bicycling law should be applied for safety. The from out of nowhere SHA pulls out the so called "requirement" that cyclists must obey slow moving threatens to mess that all up.

So why bring up up slow moving vehicle law at all? Is it just another excuse to say something close to "cyclists need to stay out of the way of cars"? How about SHA needs to build us nice cycling facilities so we could be out of the way of cars? For me this is just a victim blaming thing. Public roads are public space and need to be shared by the public. And everyone needs to be clear on the rules and MDOT has a habit of trying to mess up those rules.

When I was a kid I rode to the right and no big deal, motorists were respectful of my presence. When I got back on the bike in 2000 right hooks and close passing galore. So I found out about "taking the lane" and the problem virtually went away. Again overly stressing cyclist must ride far right is another victim blaming thing. If motorists were polite, courteous and thoughtful to cyclists there may have never been the need to make "taking the lane" lawful for cyclists.

Taking the lane is no more rude than motorists who follow other motorists at a safe 2 second distance. Sure everyone tailgates nowadays and when I drive with a safe following distance I upset drivers behind me but the extra buffer space has saved me (and those following me) from a crash on more than one occasion. Likewise "taking the lane has helped me avoid being in an crash multiple times.

Promoting cyclists must ride right under the unspoken pretence that traffic moves faster that way would be like promoting tailgating to help traffic move faster. Not only is there no net improvement in the flow of traffic more crashes result and crashes are a major source of delays, just listen to the radio during rush hour. (BTW I never hear about safety campaigns or enforcement efforts to crack down on tailgating so in a way it is promoted.)



So what would guidance look like if we had to obey slow moving vehicle law?
So in trying to follow SHA's logic that we can't pick and choose what laws we need to obey I have to start off with choosing to ignoring the following to get close to SHA's statements.
What SHA chooses to ignore:
  • § 21-1202.1 which I take to mean if the bicycle subtitle covers bicycles going slower than the speed limit so therefore other sections in traffic law that cover going slower than the speed limit don't apply.
  • The slow moving vehicle law that says: shall be driven in the right-hand lane then available for traffic or...

So everyone grab their speedometers because they will be necessary to follow these set of rules and let's see what kind of farce SHA has in store for us.

Here is a chart that shows what rules are applicable based on your speed in relation to the speed limit.

image

Slow Moving Vehicle LawBicycling LawRegular Vehicle Law
How far rightas close as practicable to the right-hand curb or edge of the roadway (sans "and safe")as near to the right side of the roadway as practicable and safe (when applicable)n/a
When required to ride far rightAlwaysOnly in a lane that is wide enough to share (13'-14' or greater), that is not a right turn only lane, on a two way street and the cyclist is not preparing to turn left or the cyclists is avoiding hazards. (Not many streets fit this criteria.)n/a
Shoulder useMandatory regardless of conditionOptional unless speed limit is greater than 50 MPH then shoulder use is requiredDiscouraged
Special equipment a slow moving vehicle emblem unless you average 25 MPH or better*n/an/a
When making a left turnFrom the right side onlyMay use the left side for traffic in that directionMust use the left side for traffic in that direction
One way streetStay on the rightMay use the left side n/a
Avoiding pedestrians or road hazardsNot clearMay move left to avoidWhatever is deemed appropriate to avoid.
The right lane is a right turn only laneStay on the rightMay ride further leftAvoid (unless turning)
Operating in a lane that is too narrow for a bicycle or motor scooter and another vehicle to travel safely side by side within the laneStay on the rightMay use the full laneUse the full lane
* If your average is 12 mph for example and you are traveling on 25 mph roads you never become a slow moving vehicle so no a slow moving vehicle emblem is required.
Have you ever seen such a complicated mess before?
As I said a complete and utter farce and only designed to confuse everyone on the road so cyclists will be continued to be harassed. Of course none of this would be asserted if you understand slow moving vehicle law as saying shall be driven in the right-hand lane then available for traffic.
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