New Legislation From Sacramento (and a Veto)

Governor Brown shamefully vetoed for the second time a bill designed to facilitate safe passing of bicycle traffic in California. SB 1464 would have required drivers to give bicyclists at least 3 feet of space when passing from behind. That’s right: safe passing room is veto-worthy to Governor Brown. Even though the bill was backed by the California Bicycle Coalition and advocates across the state, and ultimately watered down to make it palatable to the CHP and Auto Club, our wonderful governor with a stroke of the pen keeps cyclists in danger. Read on about the bills the Governor did sign.

First a Reminder: Roads by Law Need to be Safe for Cyclists Already!

There is no good reason for those of us who ride our public highways to fear getting assaulted by a driver behind the wheel. US law by precedent allows bicycles where motorized vehicles travel (with very limited exceptions). So feel free to ride most anywhere you like; enjoying the right to travel in and between states regardless of mode is as American as pie. Second, the state vehicle code very clearly directs the driver of an overtaking vehicle to take care in passing:

The driver of a vehicle overtaking another vehicle or a bicycle proceeding in the same direction shall pass to the left at a safe distance without interfering with the safe operation of the overtaken vehicle or bicycle, subject to the limitations and exceptions hereinafter stated. (Section 21750)

(The following section advises road users that “the driver of an overtaken vehicle shall safely move to the right-hand side of the highway in favor of the overtaking vehicle after an audible signal or a momentary flash of headlights by the overtaking vehicle.” But note that the code defines a bicycle as a ‘device’ and not a ‘vehicle,’ and in any case the driver of an overtaken vehicle need not drive on the shoulder or hug the right – as in hug the curb – if it is not safe to do so.)

The legislation that Brown vetoed would have made explicit the responsibility that drivers have to offer those on a bike a discrete and specified buffer (3 feet). The bill also afforded drivers protection to legally pass even if that means momentarily crossing the double yellow line. (According to the current code, “If double parallel solid yellow lines are in place, a person driving a vehicle shall not drive to the left of the lines” except on a broken yellow line.)

Most crucially, the legislation would have offered those who bike a way to demonstrate categorically that a driver failed to pass safely by allowing a safe (e.g., 3 feet) buffer. Perhaps that’s why Governor Brown vetoed it. Denying those who bike the means to hold accountable motorists who pass unsafely is reason enough to drop the Governor a line to say you’re reconsidering your support for his proposed budget-saving California Tax Increase Initiative if he’s unwilling to support your safe travel on the road.

For more on the laws that legislators have seen fit to apply to those who choose to ride, see our Laws page. Now on to the new laws.

Legislation That Was Signed By the Governor

While the Governor gave the raspberry to cyclists with his veto of SB 1464, he did sign legislation that might make a long-term difference in how we engineer our roads.

Foremost, the Governor signed Assembly Bill 2245 to exempt from the California Environmental Quality Act the re-striping of streets and highways for bicycle lanes as consistent with a bicycle transportation plan. (The bill is not clear on whether it must be a Metro-approved ‘BTA’ plan which is necessary for certain state funding.) The upside here is that the legislation removes some uncertainty with regard to local implementation of on-street bicycle facilities by calling such projects ‘exempt.’ That takes facilities that don’t impact traffic out of the CEQA process entirely – a victory for local governments trying to make change at the margin.

Of course, the downside is that it is one of several bills that whittle away at the CEQA process. Indeed one of those efforts to circumvent CEQA was Assembly Bill 890 signed by the Governor. Until January of 2016 it exempts from CEQA review roadway projects including repair, maintenance, and alteration if within the existing right-of-way and if the activity (whether or not determined under CEQA to be project) is carried out to improve public safety. Here’s the rub: this Republican-sponsored, Chamber-supported law wants to distinguish between “legitimate” activities that would move through CEQA review and those viewed by the Chamber as merely a “hook” for frivolous (read:NIMBY) litigation.

Now, the focus here is on commerce and road throughput. But there’s no reason why AB 890 couldn’t also justify road improvements to make cycling safer as long as they fit within the existing right of way. Let’s hope a local DOT looks creatively at the latitude offered by the new law.

Continuing the transportation theme, the Governor signed Assembly Bill 819 to permit cities’ departments of transportation to employ the more progressive National Association of City Transportation Officials (NACTO) standards (as presented in the outstanding Urban Bikeway Design Guide) in lieu of the widely accepted American Association of State Highway and Transportation Officials (AASHTO) standards. Why? A clue is right there in the latter organization’s name: the state highway and transportation officials who crafted those standards aren’t necessarily the most creative thinkers in the room about how to make our roads accessible.

Indeed we’ve heard from various sources that one of the key barriers to better bike planning is the seat-warming in local DOTs by long-in-the-tooth transport engineers. Until they retire out, getting better ideas to filter into these departments is a challenge. That’s slowly changing, of course, but why wait it out when NACTO offers better ideas today in its fantastic online guide? As proposed the legislation would have shifted standards-setting to NACTO; as signed the legislation now offers a choice between AASHTO and NACTO standards. So it is new flexibility, and that’s good. Together with last year’s law that added two active transportation-sympathetic members to our state’s advisory California Traffic Control Devices Committee, we’ve seen some real progress at the institutional level.*

These laws were championed by the California Bicycle Coalition, officials of which remain optimistic so we will reserve judgment about the merits of AB 819. But it is a sad commentary on Sacramento when good legislation can’t make it through the legislative process without losing the ‘good.’

Lastly there is Assembly Bill 1915 that puts a funding set-aside behind programs to create safe school bus stops. Today, the state awards grants competitively for construction of bicycle and pedestrian safety projects and traffic calming measures. The new law sets aside 10% of those program funds for safe routes school bus stops away from the schools. It’s a boon for rural areas because it extends the Safe Routes program reach. One more plus is the equity aspect: the law requires the state agency making the grants to “fully consider the [safety] needs of low-income schools.” Too often it is the affluent districts that make the Safe Routes school grant applications.

That’s the roundup. A mixed bag for those who want to ride safely, and, at least in California, not much incentive to get would-be riders to get on a bike.

*At this latest Pro-Walk Pro-Bike conference in Long Beach, health crusader Dr. Richard Jackson called out AASHTO representative John Naughton for his organization’s backward active-transportation planning standards. NAACTO, he said, offers a better alternative (as many people feel). For more from Dr. Jackson and participants and attendees from Pro-Walk Pro-Bike, listen to our podcast.

Let’s Make Safe Passing a Reality Here Too!

State safe passing laws map

Courtesy the National Conference of State Legislatures.

Let’s return to our recent post about the National Conference of State Legislatures analysis of safe passing laws across our 50 states (and the District of Columbia). Their survey of legislation showed that nationwide our laws vary considerably to create a patchwork of protections (as reflected in the map). Coming out near bottom is our very own State of California with no 3-foot passing law and only a general ‘due care’ provision on the books. We can do better! Let’s take a look at some of the states that do better as we look ahead to safer streets for cyclists.

The ‘due care’ principle seems straightforward enough: cyclists would ride the public roadways with a reasonable expectation of safety because motorists must take ‘due care.’ But in a collision, that principle yields to sober reality: the 25-pound rider on a human-powered device will not fare well against a two-ton vehicle. Moreover, the ‘due care’ requirement mocks the obvious: motorists simply do not always afford cyclists a wide berth when passing.

Adding insult to injury, we’ve heard many cases where cyclists are unable to secure an investigation or recover damages because the police report was colored by the presumption that accidents happen. Recently Better Bike filed a police report after being broadsided by a speeding SUV in May, but the police report omitted our observation about the excessive speed. Instead it parroted the driver’s narrative: she was driving slowly and carefully and just didn’t see a cyclist. We’ve filed an amended statement but found that it was not actually attached to the original report when we asked for a second copy a month later.

Blogger Ted Rogers highlights the cumulative outcome of treating collisions like ‘accidents’: 45 cyclists have died or been killed on Southern California roads to date this year. While causes range from solo crashes to willful manslaughter, many of these tragic situations arise from simple negligence: the motorist failed to pass the slow-moving cyclist with due care. Safe passing laws try to address that problem with statutory language to guide motorists sometimes an objective standard by which negligence can be demonstrated. But which is more troubling: that we must quantify safe-passing for licensed drivers or that we need to remind drivers to drive responsibly at all?

What the Laws Say

Sadly, when we look at this inventory of safe-passing laws we see little creativity in addressing the causes and consequences of car-bike conflict. What prevails instead is a generic standard of ‘due care’ that sidesteps the issue or a 3-foot minimum that defaults to a low bar as a safety standard. Ten states embrace only the ‘due care’ provision while of the 20 that do identify a required minimum passing distance, the vast majority (18) simply adhere to a boilerplate 3-foot minimum regardless of topography or situation. Have a look at the map:

State safe-passing laws map and post

National Conference of State Legislatures analysis of state laws as they apply to safe-passing.

But boilerplate misses the point, doesn’t it? The 3-feet passing laws merely allow legislators to check off the ‘mission accomplished’ box. Why dig into often-contributing factors like speed or nuance the bill’s language when you can simply call it done?

But two states do tweak that minimum distance: Virginia & New Hampshire. Virginia deserves special mention for low-balling a minimum safe passing distance: alone among the 20 states it sets the distance at only two feet. And it mandates only a “reasonable speed” when passing rather than specify, say, a maximum speed difference at that proximity. For Virginia legislators, two feet at highway speeds is safety cushion enough while ‘reasonable’ leaves much wiggle room for defendants. Perennially a Texas wannabe, Virginia has it’s cake (the law) and eats it too (it’s weak) and cyclists will come out on the losing end.

New Hampshire, by contrast, steps up the minimum required safe passing distance in accordance with the velocity of the passing vehicle. How innovative! The state stands alone in requiring that drivers add one foot (to the baseline 3-foot minimum) for each 10 mph above 30 mph travel speed. So at 40 mph, for example, the driver must allow four feet. At fifty it becomes five feet, etc. (Note that the increase is not pegged to a difference in speed but instead recognizes vehicular speed. It’s the difference between a fuzzy guess on the part of a motorist and a less-subjective glance at the speedometer.)

Oregon also sets a new standard with language that defines safe passing distance as “sufficient to prevent contact with the person operating the bicycle if the person were to fall into the driver’s lane of traffic.” The statute reads:

The driver of a motor vehicle may only pass a person operating a bicycle by driving to the left of the bicycle at a safe distance and returning to the lane of travel once the motor vehicle is safely clear of the overtaken bicycle. For the purposes of this paragraph, a “safe distance” means a distance that is sufficient to prevent contact with the person operating the bicycle if the person were to fall into the driver’s lane of traffic. ORS § 811.065

Alone among all states, Oregon recognizes that conditions vary and that safe passing must acknowledge them. Road width, pavement quality, motorist distraction, and cyclist experience each help establish a safety margin for the cyclist, and Oregon expects drivers to take them all into account precisely because close passing nibbles away at the safety margin. It leaves much less room for error. No shoulders? Then cut the cyclist a wide berth, fella!

For cyclists more than motorists, safe passing is about perception. The feeling of safety in a passing situation is a function of both distance from the vehicle and a difference in velocity. We hear people all the time say, “I want to ride but I don’t feel safe because the cars pass so close.” That’s certainly true here in Beverly Hills. We have few right-hand lanes wide enough to share with motor vehicles. Yet we’re expected to share the road.

That’s where New Hampshire’s law shines: it highlights the relationship between proximity and speed difference that helps to define the safety margin but as important shapes the cyclist’s feeling about sharing the road. The statute reads:

Every driver of a vehicle, when approaching a bicyclist, shall insure the safety and protection of the bicyclist and shall exercise due care by leaving a reasonable and prudent distance between the vehicle and the bicycle. The distance shall be presumed to be reasonable and prudent if it is at least 3 feet when the vehicle is traveling at 30 miles per hour or less, with one additional foot of clearance required for every 10 miles per hour above 30 miles per hour. (265:143-a)

 

When States Don’t Lift a Finger….

California is one of the ten states that have no bike-specific safe-passing law in place. Instead these states fall back on the ‘due care’ requirement. This past Fall even boilerplate 3-foot minimum bill language proved too draconian for opponents of safe-passing legislation. So Governor Brown responded to CHP and Auto Club lobbying by vetoing a decent bill. This year we’re back with a new bill (SB 1464) and an advocacy campaign spearheaded by the California Bicycle Coalition. Should we not pass this one we’ll remain with at least 19 states in the bottom of the class, so to speak – those without any statutory language about safe passing of cyclists at all.

State reprobates include New Jersey. It stands out as an island in the Northeast for many things, including the spurning of federal assistance for capital improvement projects. More and more, New Jersey is looking like the Mississippi of the Northeast with a political environment out of the sun belt. Back in the day, in NYC we vilified the state as the doormat to the nation. We derided residents bourgeois yokels. But we loved their cheap gas.

Today things look different. We don’t much care for cheap gas anymore, and the craven closed-minded political rhetoric of Trenton finds ominous refrain in the hate-filled corridors of Arizona and Florida statehouses. Instead of belly-aching about congested roads, rising tolls, property taxes and high car insurance rates, our good friends in the Garden State might reconsider two-wheeled travel (if only to save a few bucks). Then maybe they would favor a safe-passing law. But Trenton is probably too dysfunctional to pass it anyway, and in any event Christie would veto it. On a bike he would need his own travel lane anyway, so he’s not in danger of passing vehicles.

What needs to be said about Appalachian states like West Virginia, Kentucky and southeast Ohio that also eschew bike safety? With narrow mountain roads and few services, the cyclist is in particular need of safeguards there, but any populace that cuts off mountaintops to fill streams with mine tailings won’t be likely to placate cyclists. Nor do we expect action from the northern Great Plains or a state like Texas, where the freedom to buzz or harass a cyclist remains a birthright.

We expected more from the Hawaiian islands though. Shame on you! You are nature’s paradise with a democratic statehouse can’t even enact safe-passing protection for cyclists?

The Safe-Passing Agenda in California

Here in Southern California, we need a law that doesn’t stop at a 3-foot standard but instead borrows from the very few good ideas presented by the Conference’s findings especially because cyclists here navigate a variety of conditions from congested streets to broad suburban thoroughfares. How to approach it?

We could begin by stepping up the minimum passing distance with vehicle speed like New Hampshire does. That would address situations like Orange County where streets are made “dangerous by design” (to quote last year’s report) by traffic engineers. We could include language like Oregon’s to remind motorists about the safety margin (or envelope) accorded each rider no matter the skill level, speed or appearance.

And we should put sanctions to drivers who fail to safeguard cyclists’ safety. The risk is disproportionately borne by cyclists themselves so it seems only reasonable to expect that drivers shoulder the penalty – including a DUI-type escalation (including loss of license). And perhaps it is time to take a look at the ‘strict liability’ laws as applied to the transportation context in some Northern European nations. ‘Strict liability’ in that context presumes that a cyclist riding in accord with the law has every right to expect to arrive at her destination safely. When that expectation is breached it is a matter serious enough to assign fault to the driver unless proven otherwise. We take a similar approach to pedestrians in the crosswalk: we don’t ask them to scurry across streets without benefit of stoplights and crosswalks.

Where does the current patchwork of state laws leave us? With fewer than half of safe passing laws identifying a minimum distance we clearly have our work cut out for us. The California Bicycle Coalition is on the job to get even a mediocre law passed. Let’s hope with our support they can finally make safe-passing a reality here too.

It is time that we view cyclists as a protected class with the commensurate infrastructure and laws to communicate to drivers today – and those learning to drive tomorrow – that it’s no longer open season on cyclists. But that’s no small task: few of our legislators are Long Beach’s Alan Lowenthal, the law’s sponsor. He stands in the forefront of those sensitive to cyclist needs in his capacity as California Senator from Long Beach (the bike-friendly community). Where are the others?

State of the Union: Low Regard for Cyclist Safety

State safe passing laws map

Courtesy the National Conference of State Legislatures. Click through for more information.

The National Conference of State Legislatures recently posted a handy little map and table that surveys safe passing laws across the 50 states and the District of Columbia. And boy do those laws vary! The patchwork highlights how state law can and does affect the rider’s reasonable expectation of safety. But the laws also suggest a longer-term challenge: in many states, no law at all exists to guide drivers on safe passing. And the prevailing 3-foot  standard is a low bar with a slim margin of safety in practice. This challenges California to do better. While we could emulate the best of them, the numbers suggest it more likely we’ll simply fall in with the average.

The principle seems straightforward enough: under our laws cyclists are free to ride the public roadways and are entitled to a reasonable expectation of safety. In practice, however, that principle yields to reality: many if not the majority of drivers in Southern California pass too impatiently and closely to provide much of a safety margin for the cyclist. Our vehicular code (like many) is silent on the particulars and instead falls back on ‘due care’ language that everyday is revealed to be an insufficient bulwark against injury and death.

To the extent that states have established laws, the bar has been set relatively low nationwide. And these laws are a challenge to enforce anyway. This helpful study (click the map for a summary table of states and laws) highlights just how literally all over the map (sorry) are our states on safe-passing.

State safe-passing laws map and postThe short story: 19 states have enacted no statutory language at all; 27 state laws explicitly mention the bicycle and 20 of those mandate only a minimum passing distance (in all cases except two that distance was specified as three feet). None of the state laws go as far as ‘strict liability’ on the books in Northern Europe and few even go far enough to simply reassure cyclists on American roads that law enforcement has your back.

But there is no shortage of carnage and indeed sometimes it’s a rear-ender that sends a cyclist to the hospital or worse. The authorities and the media call these ‘accidents,’ but in truth there are very few accidents but many cases of negligence. Not surprisingly, cyclists (and especially would-be riders) say that they feel vulnerable. Yet we’re often not accorded explicit protection under the law like pedestrians.

Riddle us this: If we can protect pedestrians in crosswalks, why can’t a cyclist atop a human-powered device in the carriageway expect similar protection? If we presume motorist to be at fault (and liable) when he strikes a pedestrian in the crosswalk, why not presume the motorist fault when a cyclist is struck from behind.

We can do better. This year, we’re back with a new bill (SB 1464) and an advocacy effort spearheaded by the California Bicycle Coalition intended to avoid a repeat of last Fall, when Governor Brown winked at CHP and Auto Club lobbying and vetoed SB 910. That decent boilerplate 3-foot minimum passing bill wasn’t watered-down enough for the Auto Club. This time around, its been a bit pre-watered. Yet he early word is good for the bill’s prospects, but don’t hold your breath. Just look at the map above to see the low regard across state legislatures for cycllists’ safety.

Support Senate Bill 1464 ‘Give Me Three’

Give Me Three posterDo you like to ride your bike but fear passing traffic? Have you been brushed or even rear-ended by a careless motorist? Do you despair at the paucity of bike lanes? If yes, then the California Bicycle Coalition (CBC) wants you to sign on to their Senate Bill 1464 campaign so that cyclists can bike safe in the knowledge that finally a law exists to criminalize injury at the hands of a careless or negligent motorist. Believe it or not, these safeguards don’t exist today!

Senate Bill 1464, authored by Sen. Alan Lowenthal of Long Beach (a staunch cycling supporter and speaker at the LACBC Bike Summit last Fall), will require drivers to give bicyclists at least 3 feet of clearance when passing from behind. Nineteen other states and the District of Columbia have enacted laws similar to SB 1464. Pennsylvania recently upped the ante to 4 feet. Yet California is without similar safety legislation, and saw our hopes dimmed last year when Governor Brown vetoed the last bill sent to his desk (SB 910).

That bill is back as SB 1464 which addresses the Governor’s concerns by letting drivers to cross a double yellow centerline in order to pass a bicyclist. Yes, you can do that today. But this bill codifies it. The legislation would set a base fine of $220 for injuring a bicyclist in violation of the statute. (More about the campaign from Streetsblog Los Angeles.)

SB 1464 will receive a hearing in the Senate Transportation & Housing Committee on April 17th and the CBC wants you to let the committee know NOW why you want to see these protections written into law.

Support SB 1464!

There are many ways you can support this worthy campaign. You can use the CBC’s draft letter [.doc] as a template and send it out to the Committee members (roster). Or read our letter for the salient points. Then email your letter to Jim Brown at CBC at jimbrown@calbike.org.

You can also sign onto the CBC web campaign. Or pick up the phone to urge Committee Chair Senator Mark DeSaulnier to move this through committee. Heck, if your local Senator is Fran Pavley (district 23), she sits on the committee; give her a call (916-651-4023) and tell her staff why you support safe cycling.

This is another bold campaign by the California Bicycle Coalition (cosponsoring with the City of Los Angeles) to put protections in place (and it’s their second heavy-lift on it) so consider supporting CBC with a contribution or donate to their ‘give three to get three’ fundraiser.

We’ll leave you with this thought from CBC:

“Believe it or not, under existing law it’s not illegal to injure a bicyclist with a car. In far too many cases drivers who injure bicyclists never gets cited or punished in any way. Drivers who kill bicyclists can be prosecuted for vehicular manslaughter, a criminal charge. But there isn’t a comparable charge for injuring a bicyclist, even when the injuries are severe or permanently disabling.”