An Embarrassing Ride with My Nephew

Posted by Chris Carville On July 2, 2021 at 10:09 am | Comments Closed

Merriam-Webster Dictionary defines a “Blog” as:

As a Bike Lawyer, I blog about “The Law” and how it affects bicyclists in Kentucky and Ohio. I also blog about bicycle advocacy, bicycle happenings, and bicycle riding and racing. This week, however, I choose to write about a recent cycling experience with more than a modest amount of embarrassment.

Cycling is a lot of things to a lot of different people. Cyclists come in all sizes and shapes and varieties of disciplines and interests. But we all have one thing in common – we love our cycling. Being a cyclist is part of our identities. We share that part of our personality with family and friends. Most cyclists can attest to involuntarily becoming the resident expert at work every July as Le Tour rolls through France. In those moments we are ambassadors for the cycling community.

We make new friends on group rides and enjoy old friends on weekend rides. When we ride with friends, we often solve all the world’s problems and at times work through personal difficulties on those rides. There is a kinship at the center of cycling. That kinship is all the more special when you can share it with family.

I am approaching half a century on the planet and have lasted long enough that I can ride with younger family members. Last week I had the treasure of getting to ride with my nephew Taylor who was in town for a family wedding.

Miles of Bike Paths Along C-470

Taylor is one of a kind. He is an Eagle Scout, an Architect, and presently a Wanderer. J.R.R. Tolkien reminds us that “Not all those who wander are lost” and that applies to Taylor. Taylor has always loved the outdoors from Cub Scouts to Adult Life. He spent his Summers at Philmont Scout Ranch and now his adventures are headquartered in Denver, Colorado. He has hiked the entire 2,650 miles of the Pacific Crest National Scenic Trail (PCT) and as I pen this blog, he is somewhere in Maine hiking the Appalachian Trail (AT) from north to south. In his words, he is “chasing summer” along the trail. There is more than a modest amount of irony in those words as I watch a young man challenge the convention of hiking the AT from south to north and more broadly challenge the convention of spending the summer of his life at a desk job.

Can you tell I am fond of Taylor?

So, I was very much looking forward to a ride with him while we had him in town. When in Denver Colorado he rides a fixie, a gravel bike, and a Pedicab for extra cash. He regaled me bike packing stories and tales of riding Mount Lookout, Green Mountain, South Table and North Table Mountains. When Taylor goes out for beers he can connect over 10 miles of protected bike paths from Golden, Colorado to Morrison, Colorado.

I did not have anything on par with Taylor’s Colorado cycling options in Northern Kentucky and Southwestern Ohio (although we have plenty of hills). Regardless, we rolled out of my garage at about 3:15 on a Thursday. We had planned on a 2:00 start, but as work would have it, I was running late. We road single file, then two-abreast and back to single file along some rollers just north of my house.

Taylor’s Bike Packing Set Up

Taylor’s Fixie

Strike One – Am I Entitled?

When we reached the first lighted intersection a middle-aged woman rolled up to us at the intersection and with her window down declared (I later learned the question mark was rhetorical) “Do you feel entitled?”

Entitled? I thought to myself. This is weird because this woman literally had a trunk rack with a bike on it! So, facing a fellow cyclist I took stock of the situation. What did I do wrong? We were 2 miles into the ride. I had a blinky on. Taylor had a blinky on. We both had helmets. We were riding at 17 miles per hour (uphill) and alternated between two abreast and single depending on traffic. She could not have been behind us for more than a quarter-mile.

So that left me with two alternatives: I must have felt entitled to be on the road in the first place or I must have felt entitled to ride two abreast – both legal and neither really holding her up. I did note that there was zero traffic behind her at the intersection.

So, I asked her for clarification: “To what did I feel entitled?” This was an earnest question as I was genuinely confused and had clearly irritated a fellow cyclist. Her response? “You know what I mean.” And she drove off in a huff.

That. Was. Weird.

The middle portion of the ride was on a bike path so Taylor and I chatted that conundrum up for at least fifteen minutes and we both remain confused to this day about what she really meant.

Regardless, that was an unfriendly way to start our ride.

Strike Two – What About That Three Foot Law?

Once we exited the bike path, we were on old country roads with zero shoulder and a white line. I have nothing against old country roads, I kind of like them to be honest. With a delayed start time, it must have been around 4:30 when we hit that patch of roadway and we had vacillating adherence by our fellow motorists with the three-foot law as they passed during growing rush hour traffic. Getting buzzed is par for the course, but again, embarrassing to me as I was showing Taylor one of my local routes. I had to wonder; Did Taylor get the same treatment in Colorado? Colorado has a three-foot law. I was too embarrassed to ask.

Things have a way of occurring in threes.

Strike Three – The All-Black SUV

As we descended off the hardest segment of the ride, Eight Mile Wall, we approached a four-way intersection with a stoplight. We were facing west with a left turn lane. As a matter of personal policy, I always enter the roadway as I approach intersections. A cyclist in the roadway is more visible and avoids the risk of being clipped by a right-turning vehicle if the cyclist remained in the shoulder. This approach also allows you to stay out of the way of any motorists who are taking a right turn on a red light.

Well, none of this sat well with the fella in the All-Black Ford Expedition EL with Black Rims who was immediately behind us in the intersection. Here comes Strike Three! In an attempt to get our attention, he laid into that Ford Expedition’s horn with multiple five-second horn blows. This had the intended effect of getting my attention and I turned around to find him gesticulating madly in between horn blows. I interpreted his hand signals to read something along the lines of You-Have-No-Right-To-Be-Where-You-Are-Get-Out-Of-My-Three-Quarter-Ton-SUV’s-Way. It was almost like I hurt his beloved SUV’s feelings and he felt honor-bound to defend his slighted vehicle. His face was very red.

We did not move. I offered him the opportunity to roll down his window and use words instead of his horn to communicate with us. He declined.

Regardless, at the end of the day, all of this: (1) angry motorist number 1; (2) the close passes on narrow roads; and (3) the excessive use of one’s SUV’s horn, all left me embarrassed. Taylor is too kind to complain about it, but our community sure did not give him a warm reception as a cyclist.

However, the ride was not a complete bust. He did ask me to text him a screenshot of the Eight Mile Wall Segment and its 16% grade. I hope he adds that part to his story when he is chatting with his Denver buddies about riding back home because the rest was not very pretty.

Excuse Me For Impeding – Differing Laws for Ohio and Kentucky Cyclists

Posted by Chris Carville On March 12, 2021 at 10:15 am | Comments Closed

So, if a Cyclist has the right to ride in the roadway and a right to ride two-abreast, does he or she have a right to impede traffic?

In Ohio…

In Ohio, you are not impeding traffic presuming that you are operating your bicycle at or near its maximum speed.

In Ohio, R.C. 4511.22 states:

(A) No person shall stop or operate a vehicle, trackless trolley, or streetcar at such an unreasonably slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with law.

“Vehicles” are broadly defined in Ohio. Pursuant to R.C. 4501.01(A), a “vehicle means everything on wheels or runners, including motorized bicycles, but does not mean electric personal assistive mobility devices, vehicles that are operated exclusively on rails or tracks or from overhead electric trolley wires, and vehicles that belong to any police department, municipal fire department, or volunteer fire department, or that are used by such a department in the discharge of its functions.”

Bicycles are defined by R.C. 4501.01(K) as “every device, other than a device that is designed solely for use as a play vehicle by a child, that is propelled solely by human power upon which a person may ride, and that has two or more wheels, any of which is more than fourteen inches in diameter.”

Given the broad definition of “vehicle” in R.C. 4511.22, a Cyclist “operating a vehicle [including a bicycle]” who travels at “an unreasonably slow speed” could be guilty of “imped[ing] or block[ing] the normal and reasonable movement of traffic[.]” Measured against a motor vehicle, virtually any nonprofessional cyclist would be operating his or her bicycle at an unreasonably slow speed could impede the normal and reasonable movement of traffic. Steven O. Selz was charged with just such an offense by the City of Trotwood. Mr. Selz was accused of violating Section 333.04(a) of the Trotwood Municipal Code, which provided (similar to R.C. 4511.22):

No person shall stop or operate a vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with [the] law.

Mr. Selz was convicted of this offense in Traffic Court. Fortunately for Mr. Selz and Cyclists in Ohio, he was capably represented by my friend and colleague, Steve Magas. Section 333.04(a) of the Trotwood Municipal Code could not be fairly read to prohibit any bicycle on an Ohio roadway. Steve argued, with success, that Mr. Selz was operating his “vehicle” (also known as a bicycle) at the maximum speed at which he could possibly operate his bicycle – 15 mph uphill!

Steve analogized Mr. Selz’s operation of his bicycle to that of an operator of a corn combine in a prior case, where that court found: “The corn combine, was traveling at or near its highest possible speed. To permit the jury to impose liability on the basis of the speed of the combine would be tantamount to a holding that the operation of farm machinery such as appellants’ on the public roadway typically constitutes negligence per se. We cannot endorse such a holding. Title 68A [of the Georgia Code] does not exclude farm machinery from the public roads.”

Trotwood v Selz was decided in 2000. Two years later, pursuant to Senate Bill 123, R.C. 4511.22 was amended to include Subsection (C) which now includes language very similar to the Second District’s Holding in Trotwood v Selz:

(C) In a case involving a violation of this section, the trier of fact, in determining whether the vehicle was being operated at an unreasonably slow speed, shall consider the capabilities of the vehicle and its operator.

So the moral of the story in Ohio is that a Cyclist will not be impeding traffic if he or she is operating their bicycle at the upper end of their capabilities, which may beg the question of what that particular Cyclist’s capabilities were in the first instance. A professional cyclist’s “capabilities” going uphill on a roadway will be much different than a weekend warrior’s capabilities. These are arguments that may fall on deaf ears as you are issued a citation by a police officer but may find a receptive ear by a municipal or state court judge or a jury of your peers if that matter goes that far in the justice system.

In Kentucky…

Kentucky Cyclists do not face similar exposure to criminal convictions.

In Kentucky, KRS 189.390(7) states:

A person shall not drive a motor vehicle at a speed that will impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.

The difference, like the devil, is in the detail. KRS 189.390(7) is limited to motor vehicles.

Like Ohio, vehicles are broadly defined in Kentucky. A bicycle will be considered a “vehicle” under the Kentucky Revised Statutes as a bicycle is an “agency” for ”the transportation of persons over or upon the public highways of the Commonwealth.”

KRS 189.010(19)(a) defines a “vehicle” as including:

1. All agencies for the transportation of persons or property over or upon the public highways of the Commonwealth; and

2. All vehicles passing over or upon the highways.

Bicycles are specifically exempted from “slow vehicle” signage in Kentucky. A bicycle does not have to display a slow-moving vehicle emblem that is required of other “slow-moving vehicles.”

KRS 189.830 states as follows:

(1) The slow-moving vehicle emblem shall be restricted to the uses specified herein and the use on any other type of vehicle or on other objects is prohibited.

* * *
(5) The slow-moving vehicle emblem shall not be used on a bicycle.

So the short answer to the pending impeding question is: Cyclists in Ohio are broadly defined as vehicle operators and may be subject to prosecution for impeding traffic, but a good lawyer should be able to “get you off” (because you were innocent in the first instance) pursuant to Trotwood v Selz (2000 2nd Dist.), 139 Ohio App.3d 947 and subsection C of R.C. 4511.22 arguing that you were pedaling within your “capabilities”; and Cyclists in Kentucky should not be charged in the first instance because the impeding traffic statute, KRS 189.390(7), is narrowly limited to motor vehicles, not all vehicles.

Three Foot Law Protection for Cyclist in Ohio and Kentucky – Part 1 of 2

Posted by Chris Carville On February 15, 2021 at 12:55 pm | Comments Closed

On my second visit to the Two Johns Podcast, we discussed both Ohio’s and Kentucky’s Three Foot Passing Laws and how they protect Cyclists. This article is the first of two comparing and contrasting Ohio’s Three Foot Law for Cyclists with Kentucky’s Three Foot Law for Cyclists.

Our friends at the National Conference of State Legislatures offer us the following summary:

In 1973, Wisconsin became the first state to enact such a law; several more states have since enacted such measures. As of April 2020, 33 states—Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Virginia, Utah, Washington, West Virginia, Wisconsin and Wyoming—and the District of Columbia have enacted passing laws that require the motorist to leave at least 3-feet or more when passing a bicyclist.

North Carolina has a 2 feet passing requirement for motorists, and also allows passing in a no-pass zone if a motorist leaves 4 feet clearance.

Two states have laws that go beyond a 3-feet passing law. Pennsylvania has a 4-feet passing law. South Dakota enacted a two-tiered passing law in 2015; with a three-foot passing requirement on roads with posted speeds of thirty-five miles per hour or less and a minimum of six feet separation for roads with speed limits greater than thirty-five miles per hour.

Additionally, five states, Delaware, Kentucky, Nevada, Oklahoma and Washington, require a motorist to completely change lanes when passing a bicyclist if there is more than one lane proceeding in the same direction.

In 8 other states, there are general laws that provide that motorists must pass at a “safe distance.” These laws typically state that vehicles must pass bicyclists at a safe distance and speed; Montana’s law, for example, requires a motorist to “overtake and pass a person riding a bicycle only when the operator of the motor vehicle can do so safely without endangering the person riding the bicycle.”

Ohio enacted its Three Foot Law in 2017. As will be discussed in Part 2 of this series of Articles, Kentucky enacted its Three Foot Law in 2018.

Ohio’s Three Foot Law can be found in Revised Code 4511.27 entitled “Rules Governing Overtaking and Passing of Vehicles.”

(A) The following rules govern the overtaking and passing of vehicles or trackless trolleys proceeding in the same direction:

(1) The operator of a vehicle or trackless trolley overtaking another vehicle or trackless trolley proceeding in the same direction shall, except as provided in division (A)(3) of this section, signal to the vehicle or trackless trolley to be overtaken, shall pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle or trackless trolley. When a motor vehicle or trackless trolley overtakes and passes a bicycle or electric bicycle, three feet or greater is considered a safe passing distance.

(2) Except when overtaking and passing on the right is permitted, the operator of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle at the latter’s audible signal, and the operator shall not increase the speed of the operator’s vehicle until completely passed by the overtaking vehicle.

(3) The operator of a vehicle or trackless trolley overtaking and passing another vehicle or trackless trolley proceeding in the same direction on a divided highway as defined in section 4511.35 of the Revised Code, a limited access highway as defined in section 5511.02 of the Revised Code, or a highway with four or more traffic lanes, is not required to signal audibly to the vehicle or trackless trolley being overtaken and passed.

(B) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.
If the offender commits the offense while distracted and the distracting activity is a contributing factor to the commission of the offense, the offender is subject to the additional fine established under section 4511.991 of the Revised Code.

Note the language of the statute’s “requirement”: “When a [motorist] overtakes and passes a bicycle or electric bicycle, three feet or greater is considered a safe passing distance.” Contrast this statutory language with the United State’s first Three Foot Law: “Exercise due care, leaving a safe distance, but in no case less than three (3) feet clearance when passing the bicycle and maintain clearance until safely past the overtaken bicycle” as found in Wisconson’s Wis. Stat. § 346.075. When one drills down into the detail of Ohio’s Three Foot Law, it reads more like a suggestion than a mandatory prohibition on passing distances between a Cyclist and an overtaking motorist.

The consequences of Ohio’s less mandatory statutory language would be more significant in traffic court or a criminal court where defense counsel for the accused will invariably argue that the unique circumstances of his or her client’s case justified a one or two-foot pass as “safe.” There are scant resources available that track citations pursuant to R.C. 4511.27 in Ohio’s eighty-eight counties. So we have little idea of how often Ohio’s Three Foot Law is being enforced and with what level of success. However, we do have a standard to enforce in a civil case where a cyclist is injured or killed as a result of a crash with a passing motorist. A cyclist rarely wins – like never – in a crash with a passing motorist. And the fact that the crash occurred is damning evidence that the motorist violated Ohio’s Three Foot Law and there is tremendous value in that. Further, most citizens in Ohio have never read R.C. 4511.27 and only know that Ohio has a “Three Foot Law” designed to protect cyclists. There is even more value in a conversation and increased awareness of legislation designed to protect cyclists in Ohio.

Ohio’s Three Foot Law must be read in conjunction with Ohio’s AFRAP Law for Cyclists which requires Cyclists to ride as “As-Far-Right-As-Is-Practicable.” Ohio’s AFRAP requirement for Cyclists can be found in R.C. 4511.55:

(A) Every person operating a bicycle or electric bicycle upon a roadway shall ride as near to the right side of the roadway as practicable obeying all traffic rules applicable to vehicles and exercising due care when passing a standing vehicle or one proceeding in the same direction.

(B) Persons riding bicycles, electric bicycles, or motorcycles upon a roadway shall ride not more than two abreast in a single lane, except on paths or parts of roadways set aside for the exclusive use of bicycles, electric bicycles, or motorcycles.

(C) This section does not require a person operating a bicycle or electric bicycle to ride at the edge of the roadway when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway include when necessary to avoid fixed or moving objects, parked or moving vehicles, surface hazards, or if it otherwise is unsafe or impracticable to do so, including if the lane is too narrow for the bicycle or electric bicycle and an overtaking vehicle to travel safely side by side within the lane.

(D) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.
If the offender commits the offense while distracted and the distracting activity is a contributing factor to the commission of the offense, the offender is subject to the additional fine established under section 4511.991 of the Revised Code.

“Practicable” is undefined anywhere in the Revised Code which leaves it in the eyes of the beholder – or a judge or a jury of your peers. Where a cyclist is charged with violating R.C. 4511.55 there is a constitutional argument that the criminal prohibition is “void for vagueness” and therefore unenforceable, but that makes for a separate and much longer article.

Where a cyclist is injured as a result of a crash, R.C. 4511.55 can come into play if the crash occurs within the road’s white lines. The motorist in that situation will invariably assert that there was sufficient “roadway” or “shoulder” or “berm” for the cyclist to ride more safely or “more practicably” to the right so as to have avoided the crash. This sets up some very obvious tension for a cyclist using Ohio’s roads. If you ride within what is commonly understood as the roadway or within the right lane so as to be established and predictable in your movements you could be criticized for not being more “practicable” and riding within the berm or shoulder (if available and practicable). On the other hand, if you ride as far right as possible, you could be weaving along the right-most portion of the road/roadway and appear erratic and unpredictable. You could also be exposing yourself and fellow cyclists (if on a group ride) to problematic tarmac and other hazards that find their way into a shoulder or berm. Fortunately, R.C. 4511.55 contemplates this tension and provides that a cyclist is not obligated to ride as far right as possible, or on the “edge of the roadway”: “This section does not require a person operating a bicycle or electric bicycle to ride at the edge of the roadway when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway include when necessary to avoid fixed or moving objects, parked or moving vehicles, surface hazards, or if it otherwise is unsafe or impracticable to do so, including if the lane is too narrow for the bicycle or electric bicycle and an overtaking vehicle to travel safely side by side within the lane.” Subsection (C) provides a safety-valve of sorts, allowing a cyclist to argue that the conditions at the “edge of the roadway” would not permit safe riding. However, this does leave open the question of whether a cyclist is obligated to ride in an unobstructed or hazard-free shoulder or berm.

Cycling accidents that occur as a result of a motorist passing or overtaking a cyclist are fraught with peril. If you are the victim of such an accident, do not hesitate to reach out to Chris at Carville Legal Counsel, LLC. We offer FREE consultations. Chris can be reached at [email protected] or 513 600 8432.

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