Wednesday, October 17, 2007

Battling Irrational Drivers--and Cops with the Law


It was with great pleasure last month that I was asked by Dave Trendler of Velopress to review Robert (Bob) Mionske's new book, "Bicycling and the Law: Your Rights as A Cyclist."

I did read the book, but did not review it in time for the Velopress deadline. Needless to say, a review will be out shortly on Benepe's Bike Blog.

But the story continues. I then experienced two very unhappy incidents, all in the space of four days, with two police officers while out on my normal ride.

Both events occurred in New Jersey, but never mind, most of my readers are in New York. So I asked Bob Mionske via email to evaluate the incidents, and tell me where I stood with the law.

Bob also publishes a column in VeloNews, so he agreed, and his response will be printed tomorrow in the magazine. (In fact you should read the VeloNews version because it's a little different than the detailed treatment below).

But I am also going to reprint his answers here, on BBB, the first incident today, and the second tomorrow.

The story continues: I met Bob at Interbike two weeks ago. He's a handsome dude with short-cropped blonde hair, a cycling face that's seen many miles and lots of sun, and a very fit physique.

Bob Mionske in front of the Hotvelociti booth (hot cycling jerseys) wearing one of the 2008 Spring men's jerseys, "Arrestado por el amor al ciclismo"--or "Arrested for the love of cycling"

Bob's answers to my questions were excellent: I now emerge from a stance of fear of police harassment to a stance of security--that I know the law better than they do.

The entries are long--but you can't expect easy answers to all your questions!

RE: Jen Benepe, Police Harassment Incident
September 18, 2007

Facts:

I am about to take a left hand turn on a two lane road which is fairly narrow. If I went all the way to the double yellow line, invariably someone from behind would come too close, plus I don't want to be hit from the other direction. I make a mistake and am one block (one block!) too soon, meaning, I have to go two blocks with my hand out instead of one before I turn. I jump almost out of my skin when I hear behind me a loudspeakered voice blasting, "If you are going to take a left hand turn get out of the middle of the road," and something like "Now move it!" barked at me by an ill-informed police officer from a local municipality.

Question:

If I had been a car, he would never have dared say such a thing, and moving back to the right would have endangered me unnecessarily. Plus I believe I had the legal right to be there. Again, what is the law in this case, and how should I address his behavior?

In both cases I would like to quote the law and send a letter to the commanding officer and have them address the lack of knowledge their officers seem to be operating with.

Conclusion:

Because the location of the incident is unclear, it is unclear whether local laws apply. However, under New York state law, Ms. Benepe was clearly operating within the law. If local laws differ from New York state law, Ms. Benepe would be required to comply with the local law. If she was in riding in compliance with both state and local law, the officer’s order probably does not amount to a lawful order, because he would not have been directing Ms. Benepe on how to make a turn—he would merely be ordering her to abandon her lawful right to the road.

Applicable Laws:

NY Vehicle & Traffic Law § 159. Words and Phrases—Vehicle. Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks.

NY Vehicle & Traffic Law § 1231. Traffic laws apply to persons riding bicycles. Every person riding a bicycle…upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle…

NY Vehicle & Traffic Law § 1234. Riding on roadways, shoulders, bicycle or in-line skate lanes and bicycle or in-line skate paths. (a) Upon all roadways, any bicycle…shall be driven either on a usable bicycle…lane or, if a usable bicycle…lane has not been provided, near the right-hand curb or edge of the roadway or upon a usable right-hand shoulder in such a manner as to prevent undue interference with the flow of traffic except when preparing for a left turn or when reasonably necessary to avoid conditions that would make it unsafe to continue along near the right-hand curb or edge…

NY Vehicle & Traffic Law § 1160. Required position and method of turning at intersections. (b) Left turns on two way roadways. At any intersection where traffic is permitted to move in both directions on each roadway entering the intersection, an approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof and by passing to the right of such center line where it enters the intersection and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered. Whenever practicable, the left turn shall be made in that portion of the intersection to the left of the center of the intersection.

NY Vehicle & Traffic Law § 1160. Required position and method of turning at intersections. (c). Left turns on other than two-way roadways. At any intersection where traffic is restricted to one direction on one or more of the roadways, the driver of a vehicle intending to turn left at any such intersection shall approach the intersection in the extreme left-hand lane of the roadway lawfully available to traffic moving in the direction of travel of such vehicle or, where travel on the shoulder or slope has been authorized, from the shoulder or slope, and after entering the intersection the left turn shall be made so as to leave the intersection, as nearly as practicable, in the left-hand lane lawfully available to traffic moving in such direction upon the roadway being entered.

NY Vehicle & Traffic Law § 1600. Provisions of chapter uniform throughout state. The provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein and no local authority shall enact or enforce any local law, ordinance, order, rule, or regulation in conflict with the provisions of this chapter, unless expressly authorized herein. No local authority shall enact or duplicate any provision of this chapter as a local law, ordinance, order, rule or regulation, except that any local authority authorized to supersede any provision of this chapter may enact any such provision in a modified or amended form.

NY Vehicle & Traffic Law § 1640. Traffic regulation in all cities and villages. The legislative body of any city or village, with respect to highways (which term for the purposes of this section shall include private roads open to public motor vehicle traffic) in such city or village; subject to the limitations imposed by section sixteen hundred eighty-four may by local law, ordinance, order, rule, or regulation:
2. Prohibit or regulate the turning of vehicles or specified types of vehicles at intersections or other designated locations.

NY Vehicle & Traffic Law § 1684. State highways maintained by the state….nor shall any ordinance, rule or regulation affecting traffic or stopping, standing or parking on state highways maintained by the state be effective unless or until approval in writing has been obtained from the department of transportation, and the department of transportation may at any time rescind or modify such approval.

NY Vehicle & Traffic Law § 1101. Required obedience to traffic laws. It is unlawful, and unless otherwise declared in this title with respect to particular offenses, it is a traffic infraction for any person to do any act forbidden or to fail to perform any act required in this title.

NY Vehicle & Traffic Law § 1102. Obedience to police officers and flagpersons. No person shall fail or refuse to comply with any lawful order or direction of any police officer or flagperson or other person duly empowered to regulate traffic.

Analysis:

It is unclear from the facts which municipality this incident occurred in; therefore, it is unclear what local laws, if any, apply. However under New York state law, while bicycles are not vehicles, cyclists are accorded all of the rights and are subject to all of the duties applicable to the operators of vehicles, except where a bicycle-specific law is applicable, or alternatively, where a vehicle regulation is by its nature not applicable, cyclists are. NY Vehicle & Traffic Law § 1231. See also NY Vehicle & Traffic Law § 159. Assuming that no local law is applicable, under the facts particular to this incident, Ms. Benepe was subject to the requirements of Section 1234 of the New York Vehicle & Traffic Law, which regulates the portion of the roadway on which cyclists may ride. As per Section 1234, a cyclist must ride near the right-hand edge of the roadway, except, inter alia, when preparing to make a left-hand turn. In this incident, Ms. Benepe was preparing to make a left-hand turn; therefore, she was not required to ride near the right-hand edge of the roadway.

Once Ms. Benepe began preparing to make her left-hand turn, she became subject to Section 1160 of the New York Vehicle & Traffic Law, which regulates how turns are made. Under sub-section (b), Ms. Benepe was required by law to be positioned in the lane nearest to the center line of the roadway. This is, in fact, exactly where Ms. Benepe was riding when she was admonished by a law enforcement officer to “get out of the middle of the road.” In short, Ms. Benepe was preparing to make a left-hand turn in complete compliance with New York Vehicle & Traffic Law when the officer ordered her to “get out of the middle of the road.” It is unclear from the officer’s order from what road position he expected her to make her turn; it is equally unclear whether local law prohibits Ms. Benepe from making a left turn as required by New York state law, or whether the officer is merely misinformed on what the law requires of cyclists, or doesn’t care what the law is, and is enforcing his own version of the traffic laws.

One complicating factor in this incident is that Ms. Benepe made an error in her choice of which street she was turning at, and, as a result, she prepared to turn one block too soon before she realized her error. There is nothing in the New York Vehicle & Traffic Law that addresses such an error, nor is there any case law addressing such an error. However, it is probably safe to say, extrapolating from how the law is enforced against motor vehicles, that the operator of a vehicle who prepares to make a left turn, and then realizes that an error has been made, is not in violation of the law by choosing to continue to the next block before making the turn. Therefore, if motor vehicle operators are not required to make a left turn if they realize their error before beginning their turn, it is likely that cyclists, being accorded the same rights, are also not required to make a left turn upon realizing their error, but, like motor vehicle operators, are allowed to continue straight until reaching the next block. Note that if the cyclist has changed her mind about turning, the cyclist is required to resume riding near the right-hand edge of the road. If the intended turn is farther than the next block, the cyclist may also be required to resume riding near the right-hand edge of the road, depending on the particular circumstances at that time and place.

However, in this particular incident, Ms. Benepe prepared to turn, realized her error before making her turn, and continued on to the next block, signaling her intention to turn at the next block. Under these circumstances, Ms. Benepe was operating entirely within the law.

Furthermore, the officer did not take issue with her changing her mind about where to turn—the officer plainly said "If you are going to take a left hand turn get out of the middle of the road.” Clearly, that is not the law in New York state.

It is possible that the officer may have been directing Ms. Benepe to make her turn as a pedestrian would, using the crosswalks. New York state law does not prohibit cyclists from riding on sidewalks. However, it appears that local authorities are authorized to enact prohibitions against sidewalk riding. NY Vehicle & Traffic Law § 1600. It is unclear whether or not the municipality in question prohibits sidewalk. If sidewalk riding is permitted, then a cyclist would be permitted to ride across an intersection within the crosswalk. If sidewalk riding is prohibited, then a cyclist would still be permitted to use the crosswalk, but required to walk the bike across the intersection within the crosswalk.

It is also possible that local law prohibits cyclists from making left turns as required under New York law. NY Vehicle & Traffic Law § 1640. 2. If a law prohibiting left turns by cyclists has been enacted by this municipality, the officer’s order to “get out of the middle of the road” would be a lawful order enforcing the law, and Ms. Benepe would be required to comply with the local law, which likely would require her to use the crosswalks to make her turn.

On the other hand, if no local law prohibiting cyclists from making left turns has been enacted, the lawfulness of the officer’s order becomes questionable. All vehicle operators are required to obey the law (NY Vehicle & Traffic Law § 1101), and all vehicle operators are required to obey the lawful orders of law enforcement officers. NY Vehicle & Traffic Law § 1102. However, no order is lawful where it directs the operator of a vehicle to violate the law. See e.g., People v. Donovan, 279 N.Y.S.2d 404 (Ct. of Sp. Sess. West Co. 1967)(police officer’s order to intoxicated driver to “move on” was not lawful.). Thus, if the officer was directing Ms. Benepe to make a turn in a manner that is in violation of the law, the order is not lawful. However, if the officer was directing Ms. Benepe to make a left turn in compliance with local law, then the order was lawful. Less clear is whether the officer’s order would be lawful if the law permits Ms. Benepe to make a left turn either as a motorist would, or as a pedestrian would. If the order is lawful, then Ms. Benepe would be required to comply with the order. If the order is unlawful, Ms. Benepe would not be required to comply with it. In any event, the officer did not direct Ms. Benepe to make a turn as a pedestrian would. Therefore, assuming that local law does not require cyclists to make turns as pedestrians would, the officer’s order to “get out of the middle of the road” probably does not amount to a lawful order, because he wasn’t directing her to make her turn as a pedestrian would—he was merely ordering her to abandon her legal right to the road.

2 comments:

Anonymous said...

Hello Ms. Benepe, Does this law book say anything about riding single file?

Jen Benepe said...

I'll pass your question on to Mr. Mionske. Of course it depends by state, so I should assume you are interested in NY State?'
JB