Monday, February 4, 2013

It's Clear As Mud: IL Bicyclists May Ride To Right Of Slower Traffic

A controversy exists where none should for Illinois bicyclists.  Riding to the right of faster motor vehicle traffic is the law of the land.  But what is a cyclist legally to do when traffic to his or her left has slowed or stopped?  Must the bicyclist slow so as to maintain their position behind, or continue forward to pass on the right?  

On Friday, Chi.StreetsBlog.Org posted a story about a section of law that has confounded some regarding what the proper course is for Illinois cyclists.  Evidently some police officers in our state are confused as to what the law is.  As the story documents, after getting doored by a motorist parked along the curb, a pregnant female Chicago cyclist was recently ticketed by police for riding to the right of slower traffic.  StreetsBlog and the author of the piece, Keith Griffith, are to be applauded for shining a light on the erroneous interpretation of the law that has apparently brought about an injustice.  I was interviewed for the piece and expressed my surprise.  I would like to take this opportunity to explain how and when Illinois bicyclists may legally pass on the right.

In our state a bicyclist may pass on the right so long as it is reasonably safe to do so.  However, as the StreetsBlog story notes, some feel that cyclists may only pass on the right when there is no less than 8 feet of space available.  Rarely will there be 8 feet available between slowed and standing motor vehicle traffic and vehicles parallel parked along the right curb, at least in urban areas like Chicago.  Thus the law seems to bar passing on the right in many if not most circumstances available to the urban bicyclist; a prohibition that would likely make travel by bike nearly as much of a teeth grinding slog as is driving a car in the city.  The statute at issue is Section 11-704(b) of the Illinois Vehicle Code which states:
The driver of a 2 wheeled vehicle may not pass upon the right of any other vehicle proceeding in the same direction unless the unobstructed pavement to the right of the vehicle being passed is of a width of not less than 8 feet.  625 ILCS 5/11-704(b)
It may be reasonable to at first think of a bicycle as a "2 wheeled vehicle."  After all, in many instances the Vehicle Code treats the bicycle as just another vehicle.  Section 11-1502 states that, "Every person riding a bicycle upon a highway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this Code..."  

Unfortunately, however, some end their analysis of the law here, creating the present confusion.  Our Vehicle Code may grant bicyclists many of the same rights as drivers, but it explicitly distinguishes what is a "vehicle" and what is not.  It is fundamental to first read and understand how words are defined in a statute when trying to make sense of it.  Most statutes have a definitions section and the Vehicle Code is no exception.  It defines the term "vehicle" in Section 1-217 as, "Every device, in, upon or by which any person or property is or may be transported or drawn upon a highway or requiring a certificate of title. . ., except devices moved by human power. . ." (emphasis added).  Further, Section 1-106 defines a "bicycle" as, "Every device propelled by human power upon which any person may ride, having two tandem wheels except scooters and similar devices."  A bicycle, therefore, is not a vehicle under the Code.  Hence, Section 11-704(b)'s "eight foot rule" can only apply to motorized two wheeled devices, motorcycles, scooters, mopeds and the like.

If the Illinois legislature had meant the eight foot rule to apply to bicycles it would have said so.  Instead, in enacting Section 11-704(b) it limited the requirement to "drivers" of "2 wheeled vehicle[s]."  No doubt, the possibility of confusion could have been avoided by explicitly stating that the Section was not to apply to human powered devices, but lawmakers are human and may not foresee every way in which their creations will be used or misused.  In any event, there are other helpful sources to which we may look to understand what the law is.  The Illinois Appellate Court took up a similar issue of statutory construction in People v. Schaefer, 654 N.E.2d 267, 274 Ill.App.3d 450 (2nd Dist. 1995).  In that case, the Court was asked to consider whether Illinois' drunk driving statute applied to bicyclists.  It found that it did not after considering many of the same issues in play regarding the eight foot rule.  Firstly, the Court found that the DUI statute only applied to "vehicles," and that bicycles are not defined as such under the Illinois Vehicle Code.  Secondly, it found that any vagueness regarding whether the DUI statute should or should not apply to bicyclists must in any event be construed to the benefit of the bicyclist.  Importantly, the Court stated that where a statute seeks to outlaw certain behavior any vagueness in the law must be construed narrowly to the benefit of the person to be charged.  It held:
It is not this court's function to judicially expand the scope of an ambiguous statute.  We determine that the language of the relevant statutes is not sufficiently definite to give the person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited.  In other words, there is no clear and express legislative intent to apply [the DUI statute] to bicyclists.  We conclude that [it] does not apply to bicyclists. Schaefer, 654 N.E.2d at 269.
As I have explained above, reading the definition of vehicle in the Vehicle Code makes it pretty clear that the eight foot rule does not apply to bicyclists.  However, pursuant to the holding in Schaefer, even if clarity cannot be found, any perceived vagueness as to whether Section 11-704(b) applies to bicyclists must benefit the cyclist cited for passing on the right in the absence eight feet of space.  At best, Section 11-704(b) fails to put bicyclists on notice that they may pass on the right, denying a clear and express legislative intent to apply that Section to them.

In Chicago, the intent of the powers that be to permit cyclists to pass on the right seems a bit clearer.  Section 9-52-040(c) of the Municipal Code of Chicago states:
Every person operating a bicycle upon a roadway shall ride as near as practicable to the right-hand side of the roadway, exercising due care when passing a standing vehicle or one proceeding in the same direction in the same direction and at all times giving the right-of-way to other moving vehicles.
No eight foot rule there; just a very reasonable requirement that bicyclists exercise due care when "passing a standing vehicle or one proceeding in the same direction" at a slower speed.

Notwithstanding what the law is, there are two practical points that Illinois bicyclists should keep in mind.  Firstly, no matter what, when attempting to pass a slower vehicle on the right, a bicyclist must do so cautiously and only when conditions, including the amount of space available, allow safe passage.  Threading the needle through a tight space could get you hurt, killed or rightly ticketed.  Secondly, consider yourself on notice that many police officers will consider you in violation of the law and may give you a ticket for passing on the right.  You may eventually win the war, but you may face a battle.

As noted in the StreetsBlog piece, California cyclists recently dealt with the very same confusion.  It amended its motor vehicle code to explicitly allow cyclists to pass on the right, the new law taking effect on January 1, 2011.  Click here to read about the California law change.

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