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Motion to Dismiss
MOTION TO DISMISS
The Defendant moves the court to dismiss the charge of the alleged violation of 37 TRO §1003 for the following reasons:
1. The ordinance in question runs counter to complying with State Statutes and Tulsa Revised Ordinance, which govern proper passing of bicyclists by motorists and proper operation of bicycles on the roadways, and proscribing the requirements for making proper left and U-turns;
2. There is no government interest in restricting bicycles to some portion of the roadway “as near to the righthand side of the roadway as practicable,” and not other vehicles;
3. The ordinance in question, 37 TRO 1003, is unenforceable, constitutionally vague, and subject to differing interpretations;
4. The ordinance encourages dangerous motorist behavior, subject bicyclists to unnecessary danger, and promulgates the status of bicyclists as second-class users of the roadway.
1. SMITH v. STATE ex rel. DEPT. OF PUBLIC SAFETY (2005), 69 OK CIV APP 120 P.3d 897, paragraph 9 of the syllabus, as follows:
"There is much support in the case law for the proposition that an ordinance which prohibits an act which the statute permits is impliedly preempted." Sands & Libonati Loc Govt Law §14.04. As a rule, "[c]ity ordinances may not run counter to the general laws of the state as enacted in statutes."
Municipalities, such as the City of Tulsa, may enact and enforce ordinances in conformance with the Oklahoma Highway Safety Code, 47 O.S. 2001 §1-101 et seq.:
"The municipal governing body may establish ordinances regulations governing the operation of motor vehicles and traffic upon the roads and streets within the municipality in the manner provided by, and not inconsistent with, state law." 11 O.S. 2001 §22-117(A).
37 T.R.O. §1003: Every person operating a bicycle upon a roadway shall ride as near to the righthand side of the roadway as practicable, exercising due care when passing a standing vehicle or one proceeding in the same direction.
47 O.S. §11-1205:
A. Every person operating a bicycle or motorized scooter upon a roadway at less than the normal speed of traffic at the time and place and under the conditions then existing shall ride as close as is safe to the right-hand curb or edge of the roadway, except under any of the following situations:
1. When overtaking and passing another vehicle proceeding in the same direction;
2. When preparing for a left turn at an intersection or into a private road or driveway;
3. When reasonably necessary to avoid conditions and while exercising due care, including but not limited to:
a. fixed or moving objects,
b. parked or moving vehicles,
c. pedestrians or animals,
d. surface hazards, or
e. any time it is unsafe to continue along the right-hand curb or edge of the roadway; and
4. When riding in the right-turn-only lane.
Under City ordinance, bicycle drivers may NOT make left turns, avoid surface hazards, or stray from that portion of the roadway that is “as near to the righthand side of the roadway as practicable,” even when “it is unsafe to continue along the right-hand curb or edge of the roadway,” as specified in the State Statute.
Under 47 O.S. §1205, the State Legislature seems to recognize the inherent size and power disadvantages of bicycles as compared to motor vehicles that most commonly use the roadway.
Through the use of “including but not limited to,” in the language of the State Statutes, the Legislature seems to understand the many myriad of unforeseen roadway situations, which grant FULL use of the roadway to bicycles.
The Tulsa ordinance simply prohibits bicyclists from using 90% of the roadway, and encourages motorists to violate 47 O.S. §11-1208: When overtaking and passing a bicycle proceeding in the same direction, a person driving a motor vehicle shall exercise due care by leaving a safe distance between the motor vehicle and the bicycle of not less than three (3) feet until the motor vehicle is safely past the overtaken bicycle.
Bicyclists cannot be expected to operate bicycles on that portion of the roadway which is unsafe. Bicyclists cannot be expected to encourage motorists to practice dangerous passing behaviors.
Bicycles clearly CANNOT maintain the normal speed of motor vehicles. Motor vehicles will slow down when behind a bicycle, which seem to “impede” traffic.
47 O.S. §1-177: Traffic shall mean pedestrians, ridden or herded animals, vehicles, and other conveyances either singly or together, while using any highway for purposes of travel.
37 TRO §100: Traffic shall mean pedestrians, ridden or herded animals, vehicles, streetcars and other conveyances, either singly or together, while using any street or roadway for purposes of travel.
Thus, under BOTH State Statutes and City Ordinance, bicycles DO NOT “impede” traffic. Bicycles ARE traffic.
37 TRO §601: Every person propelling any pushcart, riding a bicycle or animal, or driving animal-drawn vehicle upon the street and any vehicle operating on rails where the rails are parallel to the street itself or where the rails are so placed as to become an integral part of the traffic movement, shall be subject to all provisions of this chapter, except those provisions which by their very nature can have no application.
37 TRO §1000: Every person operating a bicycle in the City of Tulsa shall be subject to the provisions of this title applicable to the driver of a vehicle, except as to those provisions which by their very nature can have no application. Any such person shall obey the instructions of official traffic signals, signs and other control devices applicable to vehicles unless otherwise directed by a police officer.
In movements that require lane changes or position in the left-hand lane, 37 TRO §1003 directs bicyclists to operate their vehicles in an unlawful manner.
37 TRO §628(a): No driver of a vehicle shall execute a U-turn unless such movement can be made in safety and without interfering with other traffic. The driver of a vehicle intending to make a U-turn shall approach the U-turn in the extreme left-hand traffic lane lawfully available to traffic moving in the direction of travel of such vehicle.
If the driver of a bicycle faithfully obeyed 37 TRO §1003, in anticipation of an U-turn, riding “as near to the righthand side of the roadway as practicable,” he/she would be in violation of 37 TRO §628(a), which requires lane changes to approach the U-turn in the extreme left-hand traffic lane. (Exhibit B).
2. There is NO government interest in restricting bicycles to some portion of the roadway, “as near to the righthand side of the roadway as practicable,” and not other vehicles.
Government need NOT protect motorists from slow moving bicycles “impeding” traffic. Motorists would simply slow down briefly, make a lane change, and pass in the adjacent lane. EVERY motorist encountering the Defendant on the bicycle has pass in this fashion.
ANYTHING less than 100% compliance of this proper operation of motor vehicles, on the part of motorists, would most certainly have caused the untimely death of the Defendant.
After all, as the old saying goes, “bicycles NEVER win when colliding with cars.”
There is NO government interest in “protecting” bicycles from the dangers of riding in the “middle” of the road.
Collisions between motor vehicles and bicycles have been studied more carefully than any other type of accidents involving bicycles, because the public fears them the most.
In 1974, the California Office of Traffic Safety commissioned Kenneth D. Cross to study car-bike collisions, in the first of many scientifically based reports.(Exhibit C) The most feared collision type, motorists colliding with rear of bicycle, is the one collision type that occurs the LEAST frequently.
The relatively high anxiety of the general public, law enforcement officers, and the courts of motorists colliding rear of bicycle is entirely unwarranted. Cross hypothesizes that the reason these types of accidents occur infrequently is that the hazard is so apparent to both the motorist and bicyclist that they exercise much more caution than under ordinary circumstances.
Further, government has no more interest in protecting one type of user of the roadway over the other. Bicyclists and motorists alike assume EQUALLY proportionate amount of risk when exercising their right of travel on the public roadway, as long they meet proper licensing requirements.
Certainly, there are risks to ALL users of the roadway. It is the responsibility of the INDIVIDUAL user of the roadway to MANAGE risks, real or perceived, either by training, experience, or, perhaps more common of bicycle drivers, avoidance.
3) In American constitutional law, a statute is adjudged unconstitutional when it is so vague that persons "of common intelligence must necessarily guess at its meaning and differ as to its application," as the United States Supreme Court articulated in Connally v. General Construction Co., 269 US 385, 391 (1926). A statute is void for vagueness when it is unclear what conduct is forbidden.
What is the meaning of “practicable”? Certainly it differs for the motorists, the bicyclist, the police officer, and the presiding Judge.
Even without the exceptions allowed by State Statutes, how near to the right should the bicyclist be? Motor travel lanes are typically 12 feet. Motor vehicles are typically 7-9 feet. Bicycles are three to four feet wide. Should bicyclists be so near to the right that he/she encourages law breaking and allow motorists to pass dangerously within inches of his left knee, in the same lane?
Black's Law Dictionary (5 Ed. 1979) defines "practicable" as: "* * * that which may be done, practiced, or accomplished; that which is performable, feasible, possible * * *." The review of the law of other jurisdictions indicates that other state courts generally agree with this definition.
Miller v. State (1968), 73 Wash. 2d 790, 793-794, 440 P. 2d 840; Unverzagt v. Prestera (1940), 339 Pa. 141, 144, fn., 13 A. 2d 46; Beech Fork Coal Co. v. Pocahontas Corp. (1930), 109 W. Va. 39, 46-47, 152 S.E. 785; People, ex rel. Williams, v. Errant (1907), 229 Ill. 56, 66, 82 N.E.271.
In State of Kansas v. Fred L. Ross, the appellate court opined “as nearly as practicable" connotes something less than the absolute. Automobiles are not railway locomotives. They do not run on fixed rails.”
Analogously, “as near to the righthand side of the roadway as practicable,” as in 37 TRO §1003, connotes something less than the absolute. Bicycles are not railway locomotives confined to some specific distance from the righthand side of the roadway either.
The ordinance should NOT be used to prohibit bicyclists from the FULL use of the roadway, changing lanes to make proper U-turns or left-turns, or moving away from the righthand side of the roadway “any time it is unsafe to continue along the right-hand curb or edge of the roadway.”
4) 47 O.S. §11-1208: When overtaking and passing a bicycle proceeding in the same direction, a person driving a motor vehicle shall exercise due care by leaving a safe distance between the motor vehicle and the bicycle of not less than three (3) feet until the motor vehicle is safely past the overtaken bicycle.
37 TRO §1003 seems to be directing bicyclists to ENCOURAGE motorists to engage in DANGEROUS passing behavior and violate State Statute.
American Association of State Highway and Transportation Officials (AASHTO) defines the minimum lane width to be 12 feet. (AASHTO: A Policy on Design Standards)
Motor vehicles are 7-9 feet wide. Bicycles are 3 feet.
On the assumption the court defines “as near to the righthand side of the roadway as practicable,” to be 2-5 feet, motorists CANNOT comply with the 3 feet passing rule, WHILE sharing the SAME lane with the bicyclist.
It is the RESPONSIBILITY and in the BEST interest, of the bicyclist to ENCOURAGE motorists to OBEY law.
By positioning far enough away from the righthand side of the roadway, bicyclists avoid the blind spot of passing motorists, the rear-passenger side.
By positioning the bicycle far enough away from the righthand side of the roadway and in the direct line of sight, DIRECTLY in front of motor vehicles, motorists are more ABLE to judge distance from the bicyclist to avoid collision and practice proper passing.
In Effective Cycling, John Forester, P.E., highly regarded as courtroom expert witness, opines:
“By considering cyclists inferior to motorists, government can deny to cyclists some of the important rights that apply, in legal terms, to drivers of vehicles, but which are commonly supposed to apply to motorists, because cyclists and motorists are the only significant users of the nation's roadways. The rights denied are denied purely for the convenience of motorists. The most important of these are the right to use most of the width of the roadway, and the right to use roadways at all when bike lanes or bike paths have been produced, or those roadways which cannot be reached by driveways. The only reason for these restriction s that stands up to scientific analysis is the belief, on the part of motorists, that cyclists delay motorists.
The social application is the extension of the above political excuse to characterize cyclists. The official view is that 95% of cyclists are unable to learn how to obey the traffic laws. Of course, they conceal this behind propagandistic jargon, terming the ability to obey the traffic laws "expert skill" and those with it the "elite." Since cyclists are very little different from the population at large, that means that, supposedly, 95% of motorists must be incapable of driving properly. However, the meanness of that attitude is demonstrated immediately by the obvious reluctance of the same motoring organizations and motorists to restrict motor-vehicle driving privilege to those who demonstrate an expert, elite, level of skill. No, as long as you drive a car, only considerably below average skill is required to receive a driving license. It is absurd to consider that most adult cyclists are incapable of knowing how to obey the traffic laws when most adult cyclists, in the USA at least, have been certified by the government as having that knowledge and skill. The only excuse for this absurdity has to be the false idea that riding a bicycle makes you temporarily incompetent, an incompetence from which you recover the moment you get behind the steering wheel of a motor vehicle.
The superstitious application of the phrase cyclist-inferiority refers to the feelings induced in people by the propaganda which has been used to promote motorists' interests. These feelings include the ones that cars own the roads, that cars don't look out for me, that I, when on a bicycle, am an intruder onto their range, from which they will eject me by either threats or death. One pervasive and effective form of that propaganda has been the traditional bike-safety propaganda program (it never was safe cycling instruction and cannot be called that), which taught cyclist-inferiority superstition, no matter how dangerous that was for cyclists. Thirty percent of car-bike collisions in the Cross study (mid 1970s) are caused by the cyclist obeying the precepts of bike-safety education.
The psychological application of the phrase cyclist inferiority refers to the cyclist-inferiority phobia, complex, or superstition, depending on severity of the case. This is the sense that:
"I, the cyclist, don't really belong on the road, which is owned by the cars, and that I am unable to follow the traffic laws for drivers of vehicles, or that if I did I would quickly be smashed.
"The roads are very dangerous places where everybody is against me, and where I have no place that I can call my own to which I could retreat as a place of safety. Since the greatest danger is from cars, which operate to my danger, obviously the greatest danger to me is the same-direction traffic that comes from behind. To protect myself from this great danger, I must do all that I can to avoid same-direction motor traffic, to defer to it when it is present, to always give it the right of way, etc., including promoting bike lanes and bike paths to protect myself from this danger."
It suits motorists, which means most people in the USA, and therefore the various governments of the USA, to have cyclists considered inferior to motorists. That provides the excuse for doing things that clear the roads of cyclists for motorists' convenience. And it assists them a whole lot if cyclists cooperate by considering themselves to be inferior to motorists.
For all of these reasons (and there are probably more), it is accurate to apply the name of "cyclist inferiority" to the type of cycling and the associated feelings, superstitions, and political urges that carry out this program of motorist superiority.”
In Marbury v. Madison, the U.S. Supreme Court held that it is inherent in the nature of a court’s work to resolve conflicting interpretations of the law before it can carry out its assigned task of applying the law. If a court determines that an ordinance does not conform to the Constitution, then that ordinance is invalid and the court cannot enforce it.
Constitutional law, which encompasses legal opinions that derive from principles defined in the US Constitution, allows us to relate the concept of liberty to transportation policy. In American Jurisprudence we read: "Personal liberty largely consists of the Right to locomotion – to go where and when one pleases – only so far restrained as the Rights of others may make it necessary for the welfare of all other Citizens. The Right of the Citizen to travel upon the public highways and to transport his property thereon, by horsedrawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but the common Right which he has under his Right to life, liberty, and the pursuit of happiness.
Courts have found that the "The right of the Citizen to travel upon the public highways …. includes the right, in so doing, to use the ordinary and usual conveyances of the day, and under the existing modes of travel…." (Thompson vs. Smith, supra.; Teche Lines vs. Danforth, Mississippi.) "Ordinary and usual conveyances of the day" is subject to interpretation, but given that walking and cycling are existing modes of travel used for about ten percent of trips in the United States (and outnumber motor vehicle trips world-wide) and Americans purchase about fifteen million bicycles each year, we can only assume that human-powered travel is included.
The Right to locomotion means that persons traveling by non-motorized modes have a right to EQUALLY access every portion of the roadway in safety.
The Defendant prays this court finds 37 TRO §1003 discriminatory, subjects one class of roadway users to inferior access, and duly dismiss the charge.