Now, to put Lt. Kruger's comment in perspective, it's helpful to know what the law actually requires
. ORS 811.050 is the statute governing right of way in a bicycle lane; it is clear from reading the statute that the cyclist always has the right-of-way over a motorist who is making a turn
A person commits the offense of failure of a motor vehicle operator to yield to a rider on a bicycle lane if the person is operating a motor vehicle and the person does not yield the right of way to a person operating a bicycle, electric assisted bicycle, moped, motor assisted scooter or motorized wheelchair upon a bicycle lane.
By Lt. Kruger's interpretation of the law
, the motorist only has a duty to yield the right-of-way to a cyclist if the motorist sees the cyclist-in other words, "I didn't see her" means no citation is issued
. Now, "I didn't see her" might be a legitimate defense to a citation under certain circumstances. However, it is not up to the police to plead the driver's case; rather, the police have a duty to investigate collisions for possible violations of the law, and to let the driver plead his defense at trial
. In this case, the law is clear that a driver making a turn must yield to a cyclist in the bike lane. There is nothing in the law that adds "if the driver sees the cyclist." In fact, every driver owes every other person on the road a duty to keep a proper lookout
, and a duty to exercise due care. Furthermore, commercial drivers owe a greater duty of care to others than do non-commercial drivers. Simply put, if the cement truck driver had been keeping a proper lookout before turning across a bike path, he would have seen Tracey. The fact that he didn't see her indicates a failure to keep a proper lookout, rather than a defense to violating her right-of-way
, as the Portland Police Bureau would have us believe.