Lawyers answer questions

Our legal advisors at TCNF  Law and Injury Oregon address most right-of-way issues in their legal guide for Oregon bicyclists and pedestrians, essays, law firm blog, attorney Ray’s blog, and attorney Charley’s blogEven with these resources, questions still arise that stump us.  We email them questions, and they permit us to share their answers.  We’re thrilled to bring you this information straight from the source.

June 2018

backlinks_iconCROW: We’re aware that a cyclist called 911 after being hit by a driver, but they did not send an officer because no one claimed to be injured and property damage appeared less than $1500.  What are the rules for this?
ATTORNEY CHARLEY: There is not a legal threshold for when an officer has to respond. There may be an internal police or city policy though.  The $1,500 property damage threshold is what triggers the obligation to file an accident report with the DMV.  It’s unfair to cyclists, though, because a person’s bike could be totaled and not meet the $1,500 threshold.

May 2018

backlinks_iconCROW: When must drivers stop for pedestrians in crosswalks? I assumed it was as soon as the pedestrian invokes their right of way (assuming it’s not a hazard), but ORS 811.028(b) only states when the pedestrian is in the driver’s lane plus the adjacent lane. So if the pedestrian is crossing but several lanes away, can the driver continue forward?
ATTORNEY CHARLEY: You are correct on the crosswalk. So, for instance, if a pedestrian is crossing a five lane road (two lanes in each direction and one in the middle) and steps off the opposite curb, a driver is not required to stop for them until they have crossed the middle turn lane.
backlinks_iconCROW: What is the law regarding vehicles that are too wide for their lanes? Corvallis has several traffic lanes that are too narrow for wide vehicles, which then end up operating partially into bike lanes. Even the lanes to our hospital are too narrow for ambulances, whose side-view mirrors extend well into the bike lane. Is it legal for the ambulance to operate in that traffic lane, and would they be at fault if they hit a cyclist in the bike lane as they drove by, even though they’re as centered as possible in their own lane? Are large agricultural vehicles allowed to drive on normal lanes that are too narrow for them?
ATTORNEY CHARLEY: There is no law prohibiting wide vehicles, though vehicles over 8.5 feet wide need a special permit (ag vehicles are probably exempted but I can’t find authority for that off the top of my head). If a vehicle is too wide to fit in their lane they need to move to the left over the lane divider, though, not into the bicycle lane. If a cyclist is hit by a mirror the driver of the vehicle is definitely at fault.

Jan 2018

backlinks_iconCROW: What if a pedestrian uses a crosswalk slowly or goes back and forth, forcing traffic to stop.  Is there a line?  
ATTORNEY CHARLEY: 
I have dealt with this question before in the context of political protest marches. There is no law prohibiting crossing back and forth BUT a person doing so could be charged with ORS 166.025 Disorderly conduct in the second degree, paragraph (1)(d) makes it a crime to intentionally obstruct vehicular or pedestrian traffic to cause public inconvenience, annoyance, or alarm.
backlinks_iconCROW:
We know that electric assisted bicycles are prohibited from sidewalks as per ORS 814.410(1)(e). If the electric assist were turned off, would the bicycle then be permitted?
ATTORNEY CHARLEY: My analysis is that it is always illegal to ride an e-assist bike on the sidewalk even if the drive is off due to the definition of an e-assist bicycle (ORS 801.258) being one EQUIPPED with a motor without an exception for the motor being disengaged in that definition or ORS 814.410(1)(e)’s prohibition.
backlinks_iconCROW:
What are the legalities surrounding the “human-protected bike lane”, as was done in Portland last September?     
ATTORNEY CHARLEY: 
I think the risk (beyond the physical risks) would be a citation under ORS 814.470 if the pedestrians were considered to be on the roadway. The bicycle lane is a portion of the highway but not the roadway so in order to not violate the law the pedestrians woul dhave to be on the bicycle lane portion of the highway.  There is also the risk of arrest for disorderly conduct in the second degree (ORS 166.025) which makes it a misdemeanor to obstruct vehicular traffic. A lot of that would depend on the interpretation of “disrupt”.

Nov 2017

  1. backlinks_iconCROW: Is it illegal for pedestrians to enter a crosswalk when the countdown is flashing red? Corvallis has crosswalks that change from white to flashing red within 3 seconds, which can be too short for the back of a crowd to start crossing or to press the button and re-orient your bicycle (both of which have happened to me).
    ATTORNEY CHARLEY: 
    It is illegal to enter on a flashing don’t walk crosswalk light.  See ORS 814.010.
  2. backlinks_iconCROW: If a cyclist riding on a shoulder gets right hooked by a driver, which legal violations could apply?
    ATTORNEY CHARLEY: If a cyclist riding on a shoulder gets right hooked it would be a violation of unsafe passing of a person operating bicycle ORS 811.065. I think that would be the only statutory violation (other than careless driving).

Oct 2017

 

  1. backlinks_iconCROW: If a driver stopped at a red light, in their eagerness to turn right, drives into a pedestrian with right-of-way in the crosswalk… did the driver technically “fail to obey the traffic control device”? 
    ATTORNEY CHARLEY:
    I think the driver violated the failure to obey a traffic control device law
  2. backlinks_iconCROW: If a vehicle is pulling a trailer, does that change the definition of the vehicle and therefore its rights/responsibilities?  For example, is a bicycle hauling a trailer no longer classified as a bicycle due having too many wheels, and therefore lose the rights to use bike lanes or traffic lanes? 
    ATTORNEY RAY:
    The trailer and bike do not lose right to use the bike lane.
    ATTORNEY CHARLEY: 
    For the trailer I think the trailer wheels don’t count towards the wheel count of a vehicle so the definition remains the same.

Aug 2017

  1. backlinks_iconCROW: Regarding ORS 811.425 – Failure of slower driver to yield to overtaking vehicle, from the name it sounds like the violation begins the moment overtaking starts but that there’s no violation if the faster vehicle simply stays behind.  Is that correct?  My layman read is that this law mandates every vehicle being overtaken under conditions a-d to immediately move “off the main traveled portion of the highway into an area sufficient for safe turnout”… but I think of all the buses, garbage trucks, etc that don’t completely move off the highway.  Can you provide clarification?  Section (c) stipulates “the highway is a two directional, two-lane highway”… would the presence of bike lanes add additional lanes that nullify this law?  
    ATTORNEY CHARLEY:
    I would argue that it only applies when a vehicle is being actively overtaken based on the language of the law but that would just be my interpretation not necessarily how a court would rule. It just hasn’t been tested. I would also argue it doesn’t apply when there are bike lanes because that would create a multi-lane highway, but again that would just be what I would argue.
    ATTORNEY RAY: I agree with Charley but add this: here is another analysis of this law from 2015: you can find it on our website at https://www.tcnf.legal/oregon-slow-moving-law/
  2. backlinks_iconCROW: Page 66 of Legal Guide to Persons on Foot refers to human powered vehicles as existing in a “legal no-man’s land” per ORS 801.026(6).  With their increasing popularity (Elfs, PedalPubs, etc) and Corvallis’s festival celebrating outlandish human-powered vehicles, have there been any legal updates?  My basic question is are cars and bicycles required to yield to them in traffic/bike lanes, or are they required to get out of the way like pedestrians?
    ATTORNEY CHARLEY:
    There have not been any legal updates to the human powered vehicles law. I think (and I haven’t done much research on this) that they basically have to act like pedestrians.
    ATTORNEY RAY:
    In regard to odd machines and how the Oregon Vehicle Code will apply to them it all depends on the definition of pedestrian and bicycle contained in the ORS. There are no real updates in the law that I know of; of course if they are pulled by beasts then that is different… but those are OLD laws.  If they are not one or the other or some sort of motorized vehicle then it is hard to know that their legal status is. However, if you were to give me a photo the best I could do would be to give you an educated legal guess at what the OVC would classify it as, which is more of an art form than a real legal analysis,  but that is about the best I can do!

May 2017

backlinks_iconCROW: When it snows, people often ski in traffic lanes.  Is this legal?  Is it legal to ski in bike lanes?
ATTORNEY RAY:
My view is that skiing and walking are the same so if skiers are in regular traffic lanes or bike lanes they must yield the right of way just like pedestrians per ORS 814.040 and ORS 811.050.
backlinks_iconCROW: Are animal powered transportation or livestock herders and their livestock allowed in bike lanes?
ATTORNEY RAY: ORS 814.150 provides considerable latitude toward animals ridden or driven: (a) When riding or leading a horse or other livestock on the highway, a person must keep a lookout for vehicles and use caution to keep the animal under control (c) A person in charge of livestock being driven on a highway shall use reasonable care and diligence to open the highway for vehicular traffic. To me since “highway” is defined in ORS 801.305 to include the bike lane then this very tolerant legal treatment toward animals on the highway also applies to bike lanes so long as they “use reasonable care and diligence to open the highway for vehicular traffic”. I have not researched historic treatment of this area by the courts in Oregon yet but it is interesting and I may do it later if I get a chance.
backlinks_iconCROW:
Can more than two bicyclists ride side-by-side in traffic lanes?
ATTORNEY RAY:
ORS 814.430 offers the main rule relating to side by side riding. You can ride as many across as you want if you are not proceeding slower than the normal speed of traffic. And ORS 814.430(2)(e) provides the side by side rule which is that even when you are going slower than the normal speed of traffic you can ride two up so long as you are not impeding the “Normal and reasonable movement of traffic” which in my view allows it so long as overtaking drivers are able to safely pass. If they cannot safely pass then my view is that you must ride in single file.

Feb 2017

backlinks_iconCROW: What’s the legal difference between “road”, “highway”, and “street”?
ATTORNEY CHARLEY: 
Highway in Oregon means every street not just what we think of as highways.  It also includes sidewalks: “sidewalk is that portion of the highway…”  Same with bike lanes: “that part of the highway…”  So, when reading statutory code in Oregon you have to decide if it is regarding conduct on the roadway or the highway.  All roadways are highways but not all highways are roadways.  A roadway is the street, but the term “street” does not exist in the Oregon Revised Statutes.  Corvallis does not define “street” in their city code, either:  https://www.municode.com/library/or/corvallis/codes/code_of_ordinances?nodeId=TIT6TR_CH6.10GETRCO_S6.10.010DE  So, if there was a question, a court would turn to the dictionary definition and common usage to determine if Corvallis meant roadway when they wrote street.
backlinks_iconCROW: I’m confused about apparent contradictions for when turning cars may stop on a bike lane.  Pedal Power page 92 states when making the approach for a right turn motorists are not supposed to move over and on top of the bike lane while waiting to make a right turn.  The Drivers Manual sides with Pedal Power.  However, ORS 811.560(9) Exemptions from prohibitions on stopping, standing or parking” seems to say the opposite, stating:  When applicable, this subsection exempts vehicles momentarily stopped to allow oncoming traffic to pass before making a right-hand or left-hand turn or momentarily stopped in preparation for or while negotiating an exit from the road.  I don’t understand when ORS 811.560(9) applies.  Does it allow drivers to stop on bike lanes when pulling out of driveways, parking lots, or side streets?
ATTORNEY CHARLEY:
I think your ORS 811.560 situation is a very rare instance.  My reading of 811.560(9) would not allow a car to stop on a bike lane when exiting.
backlinks_iconCROW:
To explain “impeding traffic”, I use your blog post.  Have there been no court cases since then that have mathematically defined “significantly below the speed limit” or a distance limit for faster traffic to be blocked?  Has no one been convicted of impeding in courts in order to define these things?
ATTORNEY CHARLEY:
There have been no other cases on impeding beyond Tiffin.

September 2016

backlinks_iconCROW: I’m aware that some traffic instructors teach that cyclists can never “impede” traffic because of the statement in ORS 811.130(2): A person is not in violation of the offense described under this section if the person is proceeding in a manner needed for safe operation.  The argument is that cyclists (and horses & buggys, etc) are travelling as fast as they can possibly go, and are being safe, so they’re covered by this.  Is this true?  This is confusing because studies show a correlation between speed and injury, and therefore slower speeds are safer.  I can’t image a scenario where if a vehicle were moving slowly, it wouldn’t be doing so out of safety or necessity.  Does the clause about safety cancels out the entire concept of impeding?  Even in Charley’s blog post, the driver’s slow speed was a safety necessity to counteract his intoxication.
ATTORNEY CHARLEY:
Sometimes vehicles move slowly for the purpose of obstructing the safe and free flow of traffic.  Like most things, a police officer would need to look at the reasonableness of the impeding vehicle’s actions before issuing a citation for impeding traffic.
backlinks_iconCROW: Charley’s blog post raises awareness that we shouldn’t take our personal videos to law enforcement and expect traffic citations.  However, one of our CROW members was apparently told by an Oregon police officer that the officer would take action if we provided him video, and this Oregonian article focuses on citation based on personal video.  Any clarification will help guide our teachings.
ATTORNEY CHARLEY: If a police officer issues a citation based on video evidence the citation risks being dismissed.  What the police officer can do, though, is assist the person who took the video to file a citizen initiated violation proceeding.  A police officer has to witness an infraction in order to issue a citation themselves unless there is a crash.

June 2016

backlinks_iconCROW: Is there a legal distinction between “passing” and “overtaking”?
ATTORNEY RAY:
In the Oregon Vehicle Code they are used but without definition in the Definition sections. Of course they do mean different things; however the meaning is somewhat different depending on the context. I have not researched your question in the Oregon cases to determine if there is an appellate difference in definition.
backlinks_iconCROW: In a town where skaters have the same rights as cyclists, is there any law that would restrict a young child (say 6-years old) from skating in a traffic lane (under the conditions a bicycle can operate there)?
ATTORNEY RAY: There is no law prohibiting a 6 year old from riding a bike in traffic, or crossing the roadway in a crosswalk, so if local law makes it legal I do not know of any legal prohibition.

April 2016

  1. backlinks_iconCROW: We understand it’s illegal for vehicles to stop on a sidewalk.  When emerging from a parking lot/driveway and stopped behind a sidewalk, what if you can’t see cross traffic until you move closer to the road (which often requires stopping on top of the sidewalk)?  ORS 811.550(4) says the only exceptions to stopping on sidewalks is 811.560(4-7), but the exception to prepare for a turn is 811.560(9).
    ATTORNEY CHARLEY:  The car still has to stop before crossing the sidewalk but, once ensuring that their way is clear, the driver can move forward over the sidewalk to see if they can safely pull out. A car is never allowed to stop on the sidewalk unreasonably. However, if a car needs to pull forward and then stop (and not unreasonably block pedestrian or bicycle traffic on the sidewalk) they are not prohibited from doing so. It’s the exemption in ORS 811.560(5).
  2. backlinks_iconCROW:  Our newspaper recently described a car stopped in a traffic lane (with the driver asleep) as “impeding traffic”.  Charley’s blog post about impeding mentioned that if faster vehicles can safely pass, they’re not impeded.  Assuming cars could pass, is “impeding” the wrong violation here, and if so, what is correct?
    ATTORNEY CHARLEY: 
    The case law on impeding applies to slowly moving cars, not stopped cars.  So, if a car is driving slowly and a car can safely pass them without much hassle the case law says the slow car is not impeding traffic.  The car stopped in the lane was impeding traffic.  It probably also violated ORS 811.555 Illegal standing, stopping, or parking.
  3. backlinks_iconCROW:  Are people pulling out of their driveways required to stop before a bike path?  Are crosswalks formed where bike paths intersects traffic lanes?  A new bike path (on Hwy 34 between Corvallis and Riverside Dr.) has signs requiring cyclists to yield at every intersection with traffic lanes… is this signage correct?
    ATTORNEY CHARLEY:The statutes do not control those types of crossings.  No crosswalks are formed there. The signage is correct in that a governmental entity marked it that way, but there is no statutory basis for signing it that way.
  4. backlinks_iconCROW:   How are the new hoverboards regulated… are they a type of skate?
    ATTORNEY CHARLEY:The new hoverboards do not exist in the statutes.  They are not Segways (or electric personal assistive mobility devices) because they do not have a handhold.

October 2015

  1. backlinks_iconCROW: New crosswalk islands with buttons for flashing yellow lights have appeared all over town, and no corresponding education has been provided.  Are these normal crosswalks or do additional rules apply?  Are peds required to press the button before they cross?  If the ped has crossed but lights are still blinking yellow, are drivers required to stay stopped?  Is 811.260  Appropriate driver responses to traffic control devices the only applicable law?
    ATTORNEY CHARLEY: The crosswalk lights don’t have any statutory power.  The pedestrian still has to be in the crosswalk for the law to trigger the requirement to stop.  The pedestrian cannot get a ticket for not triggering the lights BUT if they get hit and hadn’t triggered the light the driver will have an argument.  This is why some advocates dislike the lights because it actually puts a higher level of duty on the pedestrians AND can create a separate level of crosswalk where the public starts to consider unlighted crosswalks inferior to the lighted ones and don’t stop for pedestrians.
  2. backlinks_iconCROW:  ORS 814.430(2)(c) instructs cyclists to remain to-the-right unless the lane is “too narrow for a bicycle and vehicle to travel safely side by side”.  I’ve heard that other states have explicitly defined this “too narrow” lane width, accounting for large vehicles such as buses and RVs.  Has Oregon defined this in feet?
    ATTORNEY CHARLEY:
    Oregon has not defined what it means to be too narrow.  It would be a reasonableness test as in “would a reasonable person think this lane is too narrow for this car and this bike to fit in”.
  3. backlinks_iconCROW:  You’ve repeatedly been clear that cyclists have right-of-way when traveling the “wrong direction” on bike lanes. Is there something we can use as our source on this issue, and perhaps something that we can link to on our website?
    ATTORNEY CHARLEY: The authority is the statute itself.  ORS 811.050 requires drivers to yield to bicycle operators in a bicycle lane.  There is no exception for a bicycle rider operating against traffic.  What that means, though, is that a car driver could still be ticketed if they struck a bicycle operator, but the bicycle operator would have a hard time in a negligence suit for damages because a jury can assign fault for the collision outside the plain language of the statute.  Some people think that a bicyclist could be cited for violating ORS 811.295 “failure to drive on right” for riding opposite traffic in a bicycle lane but that law only applies to operating on a roadway and a bicycle lane is not part of the roadway, it is adjacent to the roadway.  See ORS 801.155.
    EDIT: This is actually discussed in the “Legal Guide to Persons on Foot” p.33-34, where it’s mentioned that ODOT unsuccessfully lobbied for a law making “wrong way” riding illegal.
  4. backlinks_iconCROW:  Business parking lot entrances sometimes have a sidewalk from the road to the business.  Does the elongation of a private parking lot sidewalk into the road also create a crosswalk?
    ATTORNEY CHARLEY: We’ve seen this before and no, they do not create crosswalks.  Crosswalks are created by marking or intersections.  See ORS 801.220.  Intersections are created by roadways.  See ORS 801.320.  Roadways are the part of the highway for vehicular travel.  See ORS 801.450.  Highways do not include these types of private parking lots by Oregon case law, so no highway and then no roadway, so no intersection, so no crosswalk is created.

April 2015

backlinks_iconCROW: If a car is stopped and blocking a bike lane, crosswalk, or sidewalk, and a cyclist moving forward (at a walking speed if it’s a crosswalk or sidewalk) hits the stationary car, who’s at fault?
ATTORNEY CHARLEY: The scenario about the stopped car is very fact scenario specific but it would probably be the cyclists fault if the object struck had been there for long enough that a reasonable bicyclists would have been able to see it, respond to the obstacle, and avoid it.