Yesterday I defended a young man named Michael in Franklin County Municipal Court. Michael had been cited for "taking the lane" on High Street, i.e. riding in the center of the lane, rather than to the right side of the lane. Experienced cyclists like Michael know that this is the safest way to ride on narrow city streets--riding to the right side of a narrow lane invites motorists to pass in the lane which can have deadly consequences. The Columbus traffic code was amended within the last 2 years to specifically address this issue, but it seems law enforcement officers are either unfamiliar with the new law or unwilling to apply it.
On the evening of December 2, 2009, Michael was riding south on High Street between Nationwide Blvd and Spring St. It was 10:30 at night and raining. Michael was riding in the middle of the lane. A police officer pulled up next to him and directed him to move over to the right side of the lane. Michael refused and said he didn't feel safe there and that he had the right to ride in the middle of the lane. The officer slowed, pulled in behind Michael, turned on his flashing lights and cited Michael under Columbus City Code Section 2173.04(A) which states: "Every person operating a 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."
MIchael's aunt is a good friend and fellow Consider Biking Board member. She asked if Consider Biking would provide a defense for Michael since this is an important issue to Columbus cyclists. I agreed to represent Michael pro bono ("for free") and my Consider Biking colleagues, John Gideon and Jeff Stephens, provided all of the research and other information that I needed to prepare the case (thanks, guys, I couldn't have done it without you!). Jeff Stephens, the Executive Director of Consider Biking, an LAB-certified instructor and Chairman of the Columbus Transportation and Pedestrian Committee, also agreed to be an expert witness.
Michael, Jeff, John and I spent 2 weeks preparing the case. We measured the width of the lane where Michael was cited (11 ft, 3 inches). We measured the width of the corrogated metal sewer grates along the curb (25 inches). Jeff took photos of the lane and the grates. We measured the width of several automobiles, including the side mirrors (most are around 7 ft).
We appeared yesterday before Judge Dwight Maynard. I did not know Judge Maynard before yesterday. He is a very nice man and I was very impressed with him. I am a business attorney, not a criminal or trial lawyer and had never tried a case. I informed the court and the prosecutor of this fact before the trial began because I knew that I would probably make some mistakes and plod through my presentation and I didn't want them to think I was being disrespectful and wasting their time. Judge Maynard and the prosecutor were very patient with me and "generously" applied the rules of evidence and trial procedure to allow me to present my case. The judge took a sincere interest in this case and and appeared to be genuinely concerned with the safety of bicyclists on the city streets.
I actually didn't get a chance to present my case. The prosecutor gets to go first and she called her first witness, the police officer. The officer testified that Michael was riding in the middle of the lane, was warned, and then cited under 2173.04(A). I then had an opportunity to cross-examine the police officer. My cross-examination lasted way too long, so I'll give you the Readers Digest abridged version.
First of all, it's important to note that the police officer truly believes that it's safest for a cyclist to ride close to the curb in all circumstances. He really believed he was protecting Michael and doing the right thing by trying to get him out of the center of the lane. Frankly, this is what most people, including inexperienced cyclists, think. That's why it's so important that we educate everyone on this issue.
I handed the officer a copy of City Code Section 2173.04 and asked him to read clause (A), the section he cited Michael under ("Every person operating a bicycle upon the roadway shall ride as near to the right side of the roadway as practicable...."). I then asked him to read clause (C) of the law. He read as follows:
"This section does not require a person operating a bicycle to ride at the edge of the roadway or within a marked bike lane when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway or outside of a marked bike lane 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 and an overtaking vehicle to travel safely side by side within the lane."
I then took a tape measure and extended it 11 ft, 3 inches (the width of the lane) and laid it on the floor in front of the bench and asked the police officer to join me standing by the tape. I then asked the officer exactly where in the lane he thought Michael should have been riding? He said about 1 1/2 feet from the curb. "So you think that bicyclists should be required to ride over these corrogated metal sewer grates?" I asked, handing him a photo of one of those dangerous grates. "Yes," he replied, "I think it's safe for them to do that." Of course, cyclists know that these grates are very hazardous, especially when wet, and noone I know would feel safe riding over them, but I let this go for the time being and stepped off 1 1/2 ft of the tape. "OK, officer, how much space in the lane does the cyclist need to ride safely in this location?" After much discussion, the officer agreed that 3-4 ft should be sufficient to allow for the width of the bicycle and the cyclist and room to maneuver around road hazards, so I stepped off another 3 feet. "And what do you think a safe passing distance is for an automobile to pass a bicyclist?" I asked the officer. "I always give a bicyclist about 6 ft clearance," he replied. (Boy, don't we wish all motorists were this generous?) So I stepped off 6 more feet.
The officer and I were looking down at what remained of the lane width--less than a foot. "Officer, how wide is your cruiser?" I asked. "Don't know," he replied. "Do you think you could squeeze it through there," I asked pointing at the 9 inches remaining on the tape measure. "No," he replied. " "No more questions, your Honor," I said. The prosecution rested.
I remembered vaguely from law school that there is some kind of motion that can be made at the close of the plaintiff or prosecutor's case if you didn't think they had proved their case, so I took a chance. "Mr. Morgan, are you ready to put on your case," Judge Maynard asked. "Yes, your honor, I am but I'm not sure I need to. I think I'd like to move for a directed verdict." The judge smiled and leaned over the bench and said softly, "Mr. Morgan, that would be appropriate in civil court, but this is criminal court and the appropriate motion would be for aquittal under Rule 29." "Thank you, your honor, so moved." The judge granted my motion and we won without having to present our defense.
So as it turned out, John Gideon and Jeff Stephens had sat in court with me for 5 hours for nothing. Well not really, we helped our new friend, Michael, and established an important precedent that will help keep bicyclists safe on our city streets.
Consider Biking provides free for the asking laminated wallet cards setting forth the rules of the road, including the important 2173.04(C) which was the subject of Michael's case. Had he been carrying this card the night he was cited, he could have possibly provided it to the officer to support his belief that he was legally riding in the center of the lane. We gave Michael several wallet cards so he'll be prepared next time. If you're an urban cyclist, you should "never leave home without one." Contact Jeff Stephens or any Consider Biking board member and we'll get you one.
Power to the Pedal!
P.S. If you ever run into Judge Maynard, please take an opportunity to thank him for giving cyclists a fair shake in his courtroom and please support him the next time he's up for reelection--we need more judges like him.
Way to go Doug!
great story.
Posted by: Tyler Steele | January 15, 2010 at 07:43 AM
Thank you for this recount of the trial. Judge Maynard was actually a Judge in a case I was involved in while bicycling.
I was on high street late one evening heading north bound near Hubbard. A SUV that was south bound and waiting to turn left failed to yield to me and struck me. When the police arrived Officer Andrew Radich cited the driver of the SUV for failure to yield and cited me for CTC 2173.05A1 (white light to the front). When I offered to show Officer Radich the light I wore on my person to him, which I had placed in my bag during the time it took them to respond to the scene, he denied stating that the light had to be affixed to my bicycle (although the code clear states otherwise). I talked with the prosecutor at my trial date and showed her pictures I took of the light on my person and several pictures clearly showing the light was visible at 500ft as required by the code. The prosecutor dropped the charges.
While I never got a chance to speak with Judge Maynard he seemed like a nice Judge. I'm glad to hear he was so helpful.
Posted by: Michael Paktinat | January 15, 2010 at 08:15 AM
A great victory because it should go a long way to enlightening the police and public about safely sharing our roadways.
Posted by: Rich | January 15, 2010 at 09:14 AM
What a great article. Thanks for standing up for cyclists. I'm sorry about this, but I can't help it....
You should know that "noone" is not a word.
Posted by: Lindsey H. | January 15, 2010 at 09:53 AM
Doug, you are to be commended for your work to defend cyclists' rights and set a precedent for the right to control the lane! Great work to you and all involved!
Posted by: Jamie Fellrath | January 15, 2010 at 01:57 PM
Well done, Doug. Congrats to Michael, Jeff and John doe their roles. And thanks to Judge Maynard for his willingness to allow the process to shine a light on cycling issues. Great recount of the case.
Posted by: Kurt | January 16, 2010 at 05:44 AM
Thanks you for taking the case, helping the individual and other knowledgeable cyclists.
Next question, does the Columbus PD or other Columbus cyclists believe this is a one-time incident or training issue?
The National Highway Traffic Safety Administration (NHTSA) has issued training materials for police officers concerning bicycling laws, go to: http://bicycledriving.org/law/enforcement
Posted by: danc | January 16, 2010 at 05:46 AM
The most important thing we can do is make the Bike Law immediately
understandable by police.
We've passed this wonderful law, but the enforcers read the first part
(stay right) and never reach the important part (stay safe by taking
the lane.)
Our top legislative priority should be rearranging the existing law
and making it easy for them and us.
Notice that the police officer here thought he was making the cyclist safer by forcing him close to the curb. And that is indeed what the first words of the statute say.
Moreover, the statute is so complicated that the cyclist's lawyer couldn't get the charge dropped with a phone call to the prosecutor, which is the routine when an officer is obviously wrong about the law. It took an hour-and-a half trial.
When cyclists are pulled over, they are unlikely to persuade the cop.
(I failed the first two times I tried in NY, despite being an experienced lawyer knowing bike law.)
I talked about this to the Columbus City Attorney Richard Pfeiffer, who is responsible for training the police. He wasn't surprised that I had been pulled
over three times in Columbus, but wouldn't commit to doing anything.
When Consider Biking distributed cards for cyclists to show the law to
cops, Jeff described the long quotation as "legal gobbleygook."
Let's make the law self-explanatory.
Please contact me if you want to help get this through the Ohio legislature.
Carl Shoolman
Ohio Bicycle Federation board member
Posted by: Yethu | January 16, 2010 at 08:25 AM
This is great news and also demonstrates how the "Share the Road" signs only lead to confusion, since cyclists and drivers all have conflicting notions about what sharing the road means. Remove the ambiguity for urban roads like High, Cleveland, Broad, etc, and put up "Bikes Use Full Lane - Change Lanes to Pass".
http://home.swbell.net/mpion/usefulllaneFerguson.jpg
This instructs cyclists to ride properly, instructs drivers to pass safely, and ensures that the police are aware of this. All major roads in our urban neighborhoods should have that signage accompanied by sharrows placed in the middle of the lane. They should be installed in Linden, the Hilltop, etc, not just a gentrified stretch of N High.
Posted by: Keith Morris | January 16, 2010 at 12:06 PM
@Keith I like your thinking.
"Bike May Use Full Lane" (BMUFL) make was added to the 2009 MUTCD and is fully supported by Ohio Revised Code. http://tinyurl.com/yafy8rg
BMUFL arose from National Committee on Uniform Traffic Control Devices (NCUTCD) Bicycle Tech Cmmte 2005 Recommendation due to misunderstandings about what "Share the Road" sign means.
Sharrows may be used in conjunction with BMUFL.
"Share the Road" works as a slogan, program but NOT as a traffic sign.
Posted by: danc | January 16, 2010 at 04:37 PM
I'm so glad to hear this case went the way it did. I only hope that local police make an effort to understand the law over bicyclists more fully, now that more and more of us are commuting this way. We deserve the same respect that motorists do(which I know is greatly lacking from an incident one of my close friends had). Also, though our "share the road" signs may not be perfect, I truly believe it is the first step to raise motorists awareness of our presence. There is nothing more frightening than hearing that a friend has been struck by an automobile.
Posted by: Christine White | January 17, 2010 at 11:48 AM
As a lawyer and a bicyclist (from Cincinnati), you have done us proud, (even if you did move for a directed verdict in a criminal case ;-)
Posted by: sJG | January 18, 2010 at 07:00 AM
Doug - I love the commentary about marking off the width of the lane and then cutting away the distances to show exactly how safe it is to hug the lane. I actually taught a class just in that matter back in November and thought it was very well received and understood that way. Good work!
Posted by: Jamie Fellrath | January 21, 2010 at 07:33 AM
"take the lane" cases from Arizona:
http://azbikelaw.org/blog/take-the-lane/
Posted by: Ed | February 03, 2010 at 02:29 PM
Excellent post. Thank you for helping stand up for cyclists' rights everywhere. Now I think I need to educate myself about Michigan's cycling laws.
Posted by: Todd J. List | February 07, 2010 at 07:06 PM
Most excellent! Great work. :)
Posted by: Trevor | February 07, 2010 at 07:09 PM
Great story Doug! I saw your e-mail to Patrick so I went to read it.
Also, back a while ago I designed a Cafe Press T-shirt with the "take the lane" language from the Ohio Revised Code. So if you get pulled over you can just show the cop your t-shirt! Here's the link:
http://www.cafepress.com/cp/customize/product.aspx?clear=true&number=%20305012767
Posted by: Cycholibrarian | February 08, 2010 at 08:15 AM
Great story, great verdict. Are the laminated wallet cards available for download? I looked at the Consider Biking website. I would like to print my own and laminate it, if it was available as a PDF. There is a Courteous Mass group here in Dayton with cyclist education as part of the mission. These would be a great handout to participants.
Posted by: Mike L | March 29, 2010 at 11:24 AM
@Cycholibrarian: I love your T-shirt, but wonder if it would be more useful to have the sign on the back for cars to see?
Posted by: Mike L | March 29, 2010 at 11:26 AM
Wow, Doug, terrific job! Thank you on behalf of all us cyclists in Columbus.
Posted by: Kim Brown Landsbergen | May 22, 2010 at 07:20 PM
State of Ohio vs Nimmo!
On the last Friday of Bike to work week, I was ticketed for taking the lane on Alum Creek Drive between Refugee Rd and Winslow Drive. The Franklin County Sheriff's Deputy pulled me over. I handed him the laminated copy of the ORC 4511.55 Consider Biking had given me. He read it and still ticketed me. I knew the schedule for the buses, and knew both the 81 and 11 were behind me. The 81 was to pass me, and I was to arrive just in time to put my bike on the 11at 6:35 to get to work at the Statehouse. The Deputy put the time of the ticket at 6:28 am. I watched both the 81 and the 11 pass by as he was writing my ticket in the morning fog. After he let me go, the rain started, and I pedaled all the way, arriving 25 min late and soaked at work. Court is set for June 1st at 9 am AR 1B, Courtroom 1B.
Should be interesting for the State of Ohio to explain why Section C does not apply, and why I should be required to share a 133" lane with a 102" COTA bus, when I am 34" wide on my bicycle. 102 + 34 = 136, which means -3" to share with the bus!
Posted by: Brentnimmo | May 30, 2010 at 07:51 PM
I think you have a thorough understanding in this matter. You describe in detail all here.
Posted by: RamonGustav | September 07, 2010 at 10:24 PM
http://www.ohiobikelawyer.com/bike-law-101/2011/11/i-am-traffic-getting-out-of-a-ticket-revisiting-afrap/
Just gave you some love on the blog! Enjoy!
Steve Magas
Posted by: steve magas | November 16, 2011 at 10:10 AM