Taking the Lane

From Doug Morgan's blog -- Winning victories for cyclists in Central Ohio

A TwoWheeling Court Victory in CBus!
Posted: 15 Jan 2010 05:38 AM PST

Yesterday I defended a young man named Michael in Franklin County Municipal Court. Michael had been cited for "taking the lane" on High Street, i.e. riding in the center of the lane, rather than to the right side of the lane. Experienced cyclists like Michael know that this is the safest way to ride on narrow city streets--riding to the right side of a narrow lane invites motorists to pass in the lane which can have deadly consequences. The Columbus traffic code was amended within the last 2 years to specifically address this issue, but it seems law enforcement officers are either unfamiliar with the new law or unwilling to apply it.

On the evening of December 2, 2009, Michael was riding south on High Street between Nationwide Blvd and Spring St. It was 10:30 at night and raining. Michael was riding in the middle of the lane. A police officer pulled up next to him and directed him to move over to the right side of the lane. Michael refused and said he didn't feel safe there and that he had the right to ride in the middle of the lane. The officer slowed, pulled in behind Michael, turned on his flashing lights and cited Michael under Columbus City Code Section 2173.04(A) which states: "Every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable obeying all traffic rules applicable to vehicles and exercising due care when passing a standing vehicle or one proceeding in the same direction."

MIchael's aunt is a good friend and fellow Consider Biking Board member. She asked if Consider Biking would provide a defense for Michael since this is an important issue to Columbus cyclists. I agreed to represent Michael pro bono ("for free") and my Consider Biking colleagues, John Gideon and Jeff Stephens, provided all of the research and other information that I needed to prepare the case (thanks, guys, I couldn't have done it without you!). Jeff Stephens, the Executive Director of Consider Biking, an LAB-certified instructor and Chairman of the Columbus Transportation and Pedestrian Committee, also agreed to be an expert witness.

Michael, Jeff, John and I spent 2 weeks preparing the case. We measured the width of the lane where Michael was cited (11 ft, 3 inches). We measured the width of the corrogated metal sewer grates along the curb (25 inches). Jeff took photos of the lane and the grates. We measured the width of several automobiles, including the side mirrors (most are around 7 ft).

We appeared yesterday before Judge Dwight Maynard. I did not know Judge Maynard before yesterday. He is a very nice man and I was very impressed with him. I am a business attorney, not a criminal or trial lawyer and had never tried a case. I informed the court and the prosecutor of this fact before the trial began because I knew that I would probably make some mistakes and plod through my presentation and I didn't want them to think I was being disrespectful and wasting their time. Judge Maynard and the prosecutor were very patient with me and "generously" applied the rules of evidence and trial procedure to allow me to present my case. The judge took a sincere interest in this case and and appeared to be genuinely concerned with the safety of bicyclists on the city streets.

I actually didn't get a chance to present my case. The prosecutor gets to go first and she called her first witness, the police officer. The officer testified that Michael was riding in the middle of the lane, was warned, and then cited under 2173.04(A). I then had an opportunity to cross-examine the police officer. My cross-examination lasted way too long, so I'll give you the Readers Digest abridged version.

First of all, it's important to note that the police officer truly believes that it's safest for a cyclist to ride close to the curb in all circumstances. He really believed he was protecting Michael and doing the right thing by trying to get him out of the center of the lane. Frankly, this is what most people, including inexperienced cyclists, think. That's why it's so important that we educate everyone on this issue.

I handed the officer a copy of City Code Section 2173.04 and asked him to read clause (A), the section he cited Michael under ("Every person operating a bicycle upon the roadway shall ride as near to the right side of the roadway as practicable...."). I then asked him to read clause (C) of the law. He read as follows:
"This section does not require a person operating a bicycle to ride at the edge of the roadway or within a marked bike lane when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway or outside of a marked bike lane include when necessary to avoid fixed or moving objects, parked or moving vehicles, surface hazards, or if it otherwise is unsafe or impracticable to do so, including if the lane is too narrow for the bicycle and an overtaking vehicle to travel safely side by side within the lane."

I then took a tape measure and extended it 11 ft, 3 inches (the width of the lane) and laid it on the floor in front of the bench and asked the police officer to join me standing by the tape. I then asked the officer exactly where in the lane he thought Michael should have been riding? He said about 1 1/2 feet from the curb. "So you think that bicyclists should be required to ride over these corrogated metal sewer grates?" I asked, handing him a photo of one of those dangerous grates. "Yes," he replied, "I think it's safe for them to do that." Of course, cyclists know that these grates are very hazardous, especially when wet, and noone I know would feel safe riding over them, but I let this go for the time being and stepped off 1 1/2 ft of the tape. "OK, officer, how much space in the lane does the cyclist need to ride safely in this location?" After much discussion, the officer agreed that 3-4 ft should be sufficient to allow for the width of the bicycle and the cyclist and room to maneuver around road hazards, so I stepped off another 3 feet. "And what do you think a safe passing distance is for an automobile to pass a bicyclist?" I asked the officer. "I always give a bicyclist about 6 ft clearance," he replied. (Boy, don't we wish all motorists were this generous?) So I stepped off 6 more feet.

The officer and I were looking down at what remained of the lane width--less than a foot. "Officer, how wide is your cruiser?" I asked. "Don't know," he replied. "Do you think you could squeeze it through there," I asked pointing at the 9 inches remaining on the tape measure. "No," he replied. " "No more questions, your Honor," I said. The prosecution rested.

I remembered vaguely from law school that there is some kind of motion that can be made at the close of the plaintiff or prosecutor's case if you didn't think they had proved their case, so I took a chance. "Mr. Morgan, are you ready to put on your case," Judge Maynard asked. "Yes, your honor, I am but I'm not sure I need to. I think I'd like to move for a directed verdict." The judge smiled and leaned over the bench and said softly, "Mr. Morgan, that would be appropriate in civil court, but this is criminal court and the appropriate motion would be for aquittal under Rule 29." "Thank you, your honor, so moved." The judge granted my motion and we won without having to present our defense.

So as it turned out, John Gideon and Jeff Stephens had sat in court with me for 5 hours for nothing. Well not really, we helped our new friend, Michael, and established an important precedent that will help keep bicyclists safe on our city streets.

Consider Biking provides free for the asking laminated wallet cards setting forth the rules of the road, including the important 2173.04(C) which was the subject of Michael's case. Had he been carrying this card the night he was cited, he could have possibly provided it to the officer to support his belief that he was legally riding in the center of the lane. We gave Michael several wallet cards so he'll be prepared next time. If you're an urban cyclist, you should "never leave home without one." Contact Jeff Stephens or any Consider Biking board member and we'll get you one.

Power to the Pedal!

P.S. If you ever run into Judge Maynard, please take an opportunity to thank him for giving cyclists a fair shake in his courtroom and please support him the next time he's up for reelection--we need more judges like him.

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