Advocacy & Safety - Cyclists not riding in the bike lane can be killed without civil liability in AZ!

http://www.azdailysun.com/news/opinion/editorial/article_7d32c60e-3317-11df-a538-001cc4c03286.html

And even if they're in the bike lane, it's only going to cost $1000, at most. Wow. Nice to know what we're worth.

I would like to hear from an Arizona lawyer on this one.

I read the article and your title and conclusion are misleading.

At the bottom of the article the law is spelled out. No civil liability for killing a cyclist not riding in a passable bike lane. $1000 for killing a cyclist who is riding in a bike lane. Where's the confusion?

THE 3-FOOT LAW
A.R.S. 28-735. Overtaking bicycles; civil penalties
A. 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 3 feet until the motor vehicle is safely past the overtaken bicycle.
B. If a person violates this section and the violation results in a collision causing:
1. Serious physical injury as defined in section 13-105 to another person, the violator is subject to a civil penalty of up to $500.
2. Death to another person, the violator is subject to a civil penalty of up to $1,000.
C. Subsection B of this section does not apply to a bicyclist who is injured in a vehicular traffic lane when a designated bicycle lane or path is present and passable

The law, as stated in the article, discusses fines, not liability. Just because a motorist may not be subject to a fine does not mean the motorist is immune from civil liability.

It's my understanding that the penalties outlined in the article are those associated with violating the 3-ft law. In the case where an overtaking vehicle injured a cyclist, these would apply in addition to all other penalties that would normally result from such a collision. Thus it seems that cyclists are worth $1000 more than any other road user.

Any lawyers who can confirm this interpretation?

So what magic is AZ proposing for cyclists wanting to make left turns? Have they painted bike lanes to left turn areas now?

Well, MAYBE I could still ride the North Rim trail network, but it looks like AZ as a state no longer exists in my cycling universe.

Stupid law.

Stupid law.Looks more like an inaccurate interpretation of a somewhat pro-cyclist law.

Sorry, doug, it is a stupid law. To vacate any penalty because of the presence of a bike lane is stupid.

Sorry, doug, it is a stupid law. To vacate any penalty because of the presence of a bike lane is stupid.It vacates an additional penalty -- a penalty that doesn't exist in most states at all. All the penalties that normally exist everywhere else still apply.

Silly, perhaps. A "state that no longer exists in your cycling universe"? Um, yeah.

Certainly, I shouldn't point out that Austin's new three foot passing law explicitly states that if the "vulnerable road user" (a cyclist for our purposes) is violating any laws that that is an affirmative defense against the offenses listed in that section! (ordinance here (http://www.ci.austin.tx.us/council_meetings/wams_item_attach.cfm?recordID=19924)) I'm guessing Austin must not exist either!

Since AZ doesn't exist in your cycling universe because this law, while being pro-cyclist, isn't pro-cyclist ENOUGH -- which state does exist in your cycling universe? (I'm assuming you live in the US, though of course I do not know this for sure.)

At the bottom of the article the law is spelled out. No civil liability for killing a cyclist not riding in a passable bike lane. $1000 for killing a cyclist who is riding in a bike lane. Where's the confusion?
My guess? The confusion lies with the person who seems to think "civil penalty" means the same thing as "civil liability".

When you say "without civil liability", you are claiming that the cyclist's family has no right to sue the driver. The law doesn't say that at all. The "civil penalties" it talks about are fines, and they are imposed on top of any other criminal punishment and civil lawsuits the driver might incur.

From the article:

Legally, ... But if he had been hit outside a "passable" bike lane, then the driver would not be liable for any injuries to the cyclist.

Sounds like they are just adding a penalty if you are hit because a driver passed(well tired to pass) too close. The extra penalty applies EXCEPT when a rider is in the roadway when he could be in a serviceable bike lane.

It is pro bike-WITH A BIT OF ENCOURAGEMENT TO USE THOSE NICE BIKE LANES WHERE THEY ARE AVAILABLE. The extra fines are supposed to encourage drivers to give you 3 feet. What they amount to is an automatic fine of $500(injured) or $1000(dead) if a driver hits someone who is in a bike lane, or in a street without a bike lane. It uis clearly a pro bike rider pro bike lane law. The only way a driver gets a ticket for a 3 foot violation is to hit someone-you clearly have to be closer than 3 feet to hit a rider.

If you get killed when riding in the "car lane" when there is a bike lane available, then the state/city can't collect an extra $1000 from the driver. Your heirs can collect as much as their lawyer can squeeze out of the driver.

Who cares how much the state can fine a bad driver-especially when you are dead??

Pro rider pro bike lane law

Big aside-Flagstaff has nice bike lanes and drivers are EMBARRASSINGLY POLITE to bike riders. They will wait for 5-10 seconds to let a flat-lander slowly grind his way past (going uphill) before pulling out .

Considering in most states, most cyclist deaths caused by cars don't even result in a ticket, this seems pro-cycle.

From the article:
Legally, ... But if he had been hit outside a "passable" bike lane, then the driver would not be liable for any injuries to the cyclist.
Unless the reporter is referencing some other law in addition to the one quoted here, then he/she simply has this wrong. Subsection C says that if the rider is outside the bike lane, then the extra fines for the 3-foot law don't apply. It does not say the driver is suddenly free of liability for the cyclist's injuries.

Granted, subsection C is still a ridiculously stupid rule which should be scrapped immediately...but it doesn't say what both the reporter and the OP seem to think it says.

So what magic is AZ proposing for cyclists wanting to make left turns? Have they painted bike lanes to left turn areas now?

Didn't your mother ever tell you that three rights make a left!

The subsection C seems to be a nod to non bike riders.In general folks who don't ride bikes think it is crazy for bike riders to not use a lane when it is available. Flagstaff has nice bike lanes, and is a very bike friendly city.

I stay out of the pro vs con bike lane arguments.

In total it is anti cyclist. Advocates took the Bee amendment (http://www.azleg.gov/FormatDocument.asp?inDoc=%2Flegtext%2F44leg%2F2r%2Fadopted%2Fs.2625beefl.doc.htm)in hopes of fixing it later. It is biased and suggests that hitting a cyclist if they are out of a bike lane when one is present and passable is not as bad as if the cyclist had been in one. In the very rare cases this law is used after the fact the argument is not if the motorist was at fault, the argument becomes if the cyclist was in the bike lane or not and/or if they swerved in front of the vehicle that hit them.

At the bottom of the article the law is spelled out. No civil liability for killing a cyclist not riding in a passable bike lane. $1000 for killing a cyclist who is riding in a bike lane. Where's the confusion?

THE 3-FOOT LAW
A.R.S. 28-735. Overtaking bicycles; civil penalties
A. 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 3 feet until the motor vehicle is safely past the overtaken bicycle.
B. If a person violates this section and the violation results in a collision causing:
1. Serious physical injury as defined in section 13-105 to another person, the violator is subject to a civil penalty of up to $500.
2. Death to another person, the violator is subject to a civil penalty of up to $1,000.
C. Subsection B of this section does not apply to a bicyclist who is injured in a vehicular traffic lane when a designated bicycle lane or path is present and passable

How do these fines compare with those levied on a driver who kills or injures a pedestrian?

It's my understanding that the penalties outlined in the article are those associated with violating the 3-ft law. In the case where an overtaking vehicle injured a cyclist, these would apply in addition to all other penalties that would normally result from such a collision. Thus it seems that cyclists are worth $1000 more than any other road user.

Any lawyers who can confirm this interpretation?

I'm not a lawyer, but what other penalties are you talking about? Are there any?

I'm not a lawyer, but what other penalties are you talking about? Are there any?I'm not a lawyer either, but this is easy to answer ...

They would be the usual penalties applied in a collision -- somebody might get a "failure to yield" or "improper lane change" or "running a red light", etc. ticket if the police determine that happened, and then somebody is deemed to be at fault for the accident, and that person (or their insurance) pays for the damages to the other party -- either voluntarily, or it may go to court.

If somebody is killed in the collision, then it's investigated more carefully and there's the possibility of manslaughter or similar charges if the guilty party did something extra reckless, but in reality such charges are rare unless somebody was drunk.

This $500 or $1000 penalty would be on top of all of that.

Didn't your mother ever tell you that three rights make a left!

No, she used to say "two wrongs don't make a right."

Near as I can figure, AZ law means that you have to make left turns like a pedestrian... which means that 28-812...

"A person riding a bicycle on a roadway or on a shoulder adjoining a roadway is granted all of the rights and is subject to all of the duties applicable to the driver of a vehicle... " is no longer valid.

http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/28/00812.htm&Title=28&DocType=ARS

I am not a lawyer, but nothing in the referenced law says anything about shielding the motorist from civil (or criminal) liability for injuries to a cyclist. The law addresses when a particular fine ("civil penalty") applies to an accident.

The cite provides no language saying that other fines no longer apply, that the motorist is no longer liable for negligence, or that a motorist is shielded from potential criminal charges (vehicular manslaughter, etc.).

How do these fines compare with those levied on a driver who kills or injures a pedestrian?

In most cases, in most states, there's no specific fine for killing or injuring a pedestrian. The civil penalty would be for the underlying offense that led to the accident -- failure to yield, failure to stop, etc.

The fine is separate from civil liability -- if your negligence causes injury or damage, you're civilly liable for those damages in addition to any fines.

I'll note in our discussions over our 3' law that the language was such that it was not clear if the law was clarifying what constitutes ordinary due care around a cyclist or if it is an additional requirement. IMHO any time you add conditions to a 3' passing law (as in AZ and MD) you run into this confusion.

In most states a driver has no liability for injuries to a pedestrian that ran out in front of them, which roughly translates to: if the pedestrian is not operating according to their rules then the driver has no liability. A similar argument can be made for cyclists with a conditional 3' safe passing law.

The problem with law is a lot of points can be argued but what point will win the case is hard to predetermine. I am not arguing in the AZ case that a driver who hits a cyclists outside a passable bike has or does not have liability only that both points could be argued. Conditional 3' safe passing laws stink and should not count in LAB's Bicycle Friendly State program IMHO.

The subsection C seems to be a nod to non bike riders.In general folks who don't ride bikes think it is crazy for bike riders to not use a lane when it is available. Flagstaff has nice bike lanes, and is a very bike friendly city.

well they may have bike lanes some places, but the trouble is they are clearly not everywhere -- despite what mis-informed police think, see:
http://azbikelaw.org/blog/some-cyclists-just-wont-stay-in-the-gutter/
http://azbikelaw.org/blog/judge-to-cyclist-ride-in-the-gutter-pan/

bike friendly? certainly not bicyclist friendly.

http://www.azdailysun.com/news/opinion/editorial/article_7d32c60e-3317-11df-a538-001cc4c03286.html

And even if they're in the bike lane, it's only going to cost $1000, at most. Wow. Nice to know what we're worth.

Uh, unless I missed something the article linked to in the OP was about how the 3' law applied to bike lanes, and talked about how it's the city/county/states requirement to keep them clear even in the winter so that cyclists do not have to leave them or ride "dangerously" close to the white line.

I read the article and your title and conclusion are misleading.

Agreed.

At the bottom of the article the law is spelled out. No civil liability for killing a cyclist not riding in a passable bike lane. $1000 for killing a cyclist who is riding in a bike lane. Where's the confusion?

THE 3-FOOT LAW
A.R.S. 28-735. Overtaking bicycles; civil penalties
A. 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 3 feet until the motor vehicle is safely past the overtaken bicycle.
B. If a person violates this section and the violation results in a collision causing:
1. Serious physical injury as defined in section 13-105 to another person, the violator is subject to a civil penalty of up to $500.
2. Death to another person, the violator is subject to a civil penalty of up to $1,000.
C. Subsection B of this section does not apply to a bicyclist who is injured in a vehicular traffic lane when a designated bicycle lane or path is present and passable

Uh, because your title suggests that the link is going to be about cyclists NOT riding in a the bike lane and the penalty/liability of drivers if they hit and/or kill such a cyclist. The article was about how the 3' law applied to cyclists in a bike lane and how it falls to the government to make sure that the bike lanes are still usable by cyclists regardless of the weather.

We'd also need a definition of "passable" in regard to the bike lanes. Plenty of conditions that are easily "passable" for an MTB could destroy most road bikes.

Just because subsection b does not apply, does not relieve the motorist from resposibilities covered by other codes involving vehicular homocide, does it?

Marc

I read the article and your title and conclusion are misleading.

But generically speaking, what the OP said, is the attitude of most of the states.:notamused: Far be it for any state through local jurisdiction, to bring a charge of Vehicular Homicide or Vehicular Manslaughter against a motorist for killing a cyclist. They will do it for a motorist-motorist fatality, but not for a motorist-cyclist fatality.:notamused:

Far be it for any state through local jurisdiction, to bring a charge of Vehicular Homicide or Vehicular Manslaughter against a motorist for killing a cyclist.
They're not supposed to unless the driver is negligent or intoxicated. There's also the additional barrier of having enough evidence to prove such claims beyond a reasonable doubt.



They will do it for a motorist-motorist fatality, but not for a motorist-cyclist fatality.
You seem rather certain of this. Care to save us some time poring over the Internets, and actually back up your claim with some stats? Or are you just pulling this out of your subjective impressions on the matter and a handful of anecdotes?

The law, as stated in the article, discusses fines, not liability. Just because a motorist may not be subject to a fine does not mean the motorist is immune from civil liability.

That's my understanding as well (not a lawyer either though). Those are fines you have to pay the city when you violate the law. The cyclist will still be fully able to sue you and/or your insurance company for damages.

On top of that it doesn't preclude criminal charges of negligent/vehicular homicide.

We'd also need a definition of "passable" in regard to the bike lanes. Plenty of conditions that are easily "passable" for an MTB could destroy most road bikes.

Agreed, I'd say that that also includes hybrids. Or even (in the winter for those states that get snow) a bike with or without studded snow tires. Or even experience/skill level, someone who is a "seasoned veteran" cyclist can ride terrain/conditions that would give a novice a heart attack.

They will do it for a motorist-motorist fatality, but not for a motorist-cyclist fatality.:notamused:
I don't generally find this to be the case unless the motorist is intoxicated. It is becoming more and more common if the motorist was texting, but even that is not always true. Generally if you kill another road user, it's "an accident" unless you were intoxicated. This is nothing special for cyclists, although some of the stories that motorists get away with in the case of cyclists would not hold water in the case of another vehicle because of the better physical evidence.

I am not a lawyer, but nothing in the referenced law says anything about shielding the motorist from civil (or criminal) liability for injuries to a cyclist. The law addresses when a particular fine ("civil penalty") applies to an accident.

The cite provides no language saying that other fines no longer apply, that the motorist is no longer liable for negligence, or that a motorist is shielded from potential criminal charges (vehicular manslaughter, etc.).

Bolding mine. Been said before, but not quite as clearly. I'm hoping bolded and repeated some people might finally get it.

"But if he had been hit outside a "passable" bike lane, then the driver would not be liable for any injuries to the cyclist." Daily Sun Editorial, Friday, March 19, 2010. It is clear that the editor making this statement is in error. The driver would not be subject to the civil penalties of A.R.S. 28-735, but would still be potentially liable in a civil lawsuit and subject to applicable penalties for other offenses related to an incident.

But generically speaking, what the OP said, is the attitude of most of the states.:notamused: Far be it for any state through local jurisdiction, to bring a charge of Vehicular Homicide or Vehicular Manslaughter against a motorist for killing a cyclist. They will do it for a motorist-motorist fatality, but not for a motorist-cyclist fatality.:notamused:
I've heard this before, but I don't think that's a fair statement. I ran down the outcomes of every fatality in Arizona for one year (2009. there were 25 fatalities that year), the breakdown is here:
http://azbikelaw.org/blog/manner-and-fault-in-bicyclist-traffic-fatalities-arizona-2009/
According to my tally, there were 3 instances of the motorist being cited for 28-735. There were 6 manslaughters (almost always involving dui).
Keep in mind that when there's some sort of crime alledged (like a hit and run, or a dui) -- for reasons that aren't clear to me -- the driver doesn't get cited for traffic violations.

Here is much more detail on the whole episode (that led to the writing of that editorial). It includes a youtube video that is not to be missed!
http://azbikelaw.org/blog/the-city-of-flagstaff-hates-bicyclists/

I've heard this before, but I don't think that's a fair statement. I ran down the outcomes of every fatality in Arizona for one year (2009. there were 25 fatalities that year), the breakdown is here:
http://azbikelaw.org/blog/manner-and-fault-in-bicyclist-traffic-fatalities-arizona-2009/
According to my tally, there were 3 instances of the motorist being cited for 28-735. There were 6 manslaughters (almost always involving dui).
Keep in mind that when there's some sort of crime alledged (like a hit and run, or a dui) -- for reasons that aren't clear to me -- the driver doesn't get cited for traffic violations.

Nice write-up. Refreshingly objective.

Sorry, doug, it is a stupid law. To vacate any penalty because of the presence of a bike lane is stupid.

it just says the specific penalties described don't apply if the rider is out of the bike lane. if you kill a bike rider you will likely still be facing at least manslaughter charges...

Has no-one actually read the article?

"As Larry Hendricks reported Thursday, the matter was referred to the Flagstaff city attorney's office. It determined that the 3-foot rule does apply in a bike lane to drivers who are overtaking a cyclist. And after reviewing a videotape of the incident recorded from a bus camera, the city attorney has recommended that the driver be cited for the 3-foot violation as well as for speeding."

In other words, you can't ignore the the 3' rule just because the rider is in a cycle lane, so you must give him the appropriate space.

^ yeah but the OP is talking about a hypothetical rider not in the bike lane

No, she used to say "two wrongs don't make a right."

Near as I can figure, AZ law means that you have to make left turns like a pedestrian... which means that 28-812...

"A person riding a bicycle on a roadway or on a shoulder adjoining a roadway is granted all of the rights and is subject to all of the duties applicable to the driver of a vehicle... " is no longer valid.

http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/28/00812.htm&Title=28&DocType=ARS


Without a single doubt I can say you are absolutely incorrect about your interpretation of Arizona law.

Keep in mind that when there's some sort of crime alledged (like a hit and run, or a dui) -- for reasons that aren't clear to me -- the driver doesn't get cited for traffic violations.

In my state that doesn't happen because of (state law) double jeopardy concerns. Even though double jeopardy doesn't apply to civil penalties, the courts apply a functional approach to determining whether a penalty is administrative or remedial in nature, or whether it is designed as punishment. If the penalty is found to be punitive in nature, then double jeopardy does apply...which would bar a later, explicitly criminal, prosecution.

My state adopted (as did many other states) a controlled substance excise tax in the '90's. This required you to buy tax stamps if you were going to possess illegal drugs...and there was a high penalty for possessing illegal drugs without the tax stamp ($250/gram or something similar). The courts found that this was punitive in nature and, because the fine attached first, invalidated two dozen or so drug convictions.

So I think police are afraid that if they issue a traffic citation for reckless driving, it could preclude a later prosecution for criminal recklessness.

They're not supposed to unless the driver is negligent or intoxicated. There's also the additional barrier of having enough evidence to prove such claims beyond a reasonable doubt.

You seem rather certain of this. Care to save us some time poring over the Internets, and actually back up your claim with some stats? Or are you just pulling this out of your subjective impressions on the matter and a handful of anecdotes?

Subjective, maybe. But even when there has been evidence, LEO's by history have a pattern of choosing not to arrest the motorist, even when there is clear and convincing evidence. When they do, it is only once in a blue moon. Arizona is not immune to that sort of hostility towards cyclists'. The issue mentioned by the OP, is a perfect example. Cyclists have been fighting for their right to be on the road, since the 1800's. So what will habitually make Arizona any different.

I've heard this before, but I don't think that's a fair statement. I ran down the outcomes of every fatality in Arizona for one year (2009. there were 25 fatalities that year), the breakdown is here:
http://azbikelaw.org/blog/manner-and-fault-in-bicyclist-traffic-fatalities-arizona-2009/
According to my tally, there were 3 instances of the motorist being cited for 28-735. There were 6 manslaughters (almost always involving dui).
Keep in mind that when there's some sort of crime alledged (like a hit and run, or a dui) -- for reasons that aren't clear to me -- the driver doesn't get cited for traffic violations.

While you cited stats from 2009 that said 14(56%) of the biking deaths were determined to be the fault of the motorist, and 7(50%) of those motorists were criminally indicted, what the stats do not say, is how many of those motorists actually spent time behind bars. It would not be surprising if the lawyers for all seven of those motorists managed to get charges of Vehicular Homicide/Vehicular Manslaughter reduced down to something like 'unsafe operation of a vehicle resulting in death' resulting in no jail time and little if any financial penalty.

Just because a person is criminally indicted, doesn't mean that is what they ultimately serve time on. Because defense attorneys' and prosecutors will do a plea agreement that ultimately marginalizes the death of the cyclist.

The story related to this thread: http://www.bikeforums.net/showthread.php/756633-distracted-hit-amp-run-driver-kills-Indiana-bicycle-police-officer-gets-no-jail-time; shows how a cyclists' death gets marginalized by ALL segments of the legal system.

...what the stats do not say, is how many of those motorists actually spent time behind bars. It would not be surprising...
Actually, I'm working on that. One manslaughter has yet to go to trial (scheduled to start next week (http://azbikelaw.org/blog/foshee-trial-delayed-again/), although it's been delayed so many times already it seems like it will never happen).... so i was sortof waiting for that outcome, and then I'll do a synopsis with actual facts on the "class of 2009".
Off the top of my head, there were 5 manslaughters. Of the four that have been adjudicated, all four that were found or plead guilty and the presumptive sentence is 10.5 years in prison.
When the prosecutors go after someone for manslaughter, they are really serious about it, and have a very high conviction rate.

I *have* noticed that some of the hit-and-runners do seem to get off lightly, the penalty is theoretically mandatory prison time, but usually seems to end up being parole with maybe a short jail sentence
http://azbikelaw.org/blog/hit-and-run-in-arizona/
This appears to be in contradiction with what the legislators intended;
I'm trying to gather some more data.