Members of the STAR Team of Ozark Greenways received the following e-mail yesterday (published here with permission) from Brent Hugh, executive director of the Missouri Bicycle Federation, regarding the HB 1250. Hugh had originally alerted us to the bill. His message is in response to our inquiries and comments.
I wasn’t very precise in my wording.
The current law says that motorists should pass bicyclists at a safe distance.
The new law would keep that exact wording.
It would add new language stipulating that the safe distance can in no circumstances be less than three feet.
Now frankly this is not very important out on the road. No one is going to be out there with a tape measure saying, “Hey, you passed at 2 feet 11 inches! You’re going to jail!”
How it does help, though–tremendously–is in the courtroom.
In the courtroom, the question of whether the driver passed at a “safe distance” is a question of judgment.
That means the defense lawyer can make a very strong argument that a driver was intending to pass at a safe distance. It is completely a matter of judgement, and that means there is no bright line or objective standard that can be brought to bear.
In court, to get a conviction or judgment, you actually have to affirmatively prove that the driver was not passing at a safe distance. So it’s not enough to say, “Well, he was probably passing at an unsafe distance”–or “I think he was passing at an unsafe distance”. You have to **prove** it. And with such a vague and subjective standard, it is simply impossible to do.
On the other hand, whether the driver passed within three feet is a very simple and objective standard. It is a matter of fact, can be proven with simple physical evidence, and not a matter of opinion.
“Well,” you say, “No one is going to be out there with a tape measure to prove they passed at 2 feet 3.7 inches!”
True.But those cases are not going to court, either.
The cases that go to court are the ones where the driver actually strikes the bicyclists.
“Strike” means 0 inches, which is less than three feet as a matter of provable and easily demonstrable physical fact.
So that’s the reason a definite minimum passing distance is helpful.
It’s also the reason the insurance industry dislikes it so much–the insurance lobbyists firmly opposed a definite minimum passing distance when we proposed it before–and said as much as, “We oppose it because it will end up giving bigger awards to your people (bicyclists) and we’ll end up paying out more money.”
It was in vain that I argued that all sides would be better off if drivers simply gave bicyclists enough room when they pass so that *we would have less of that type of collision altogether*.
(And, by the way, some states are going with four feet as the minimum passing distance and personally I prefer that over three feet.)
One clarification: In subsequent messages it was determined that the brackets do indicate a deletion. Hugh responded that MOBikeFed would be working change the language. That’s what I would expect. And I’m glad Hugh is on top of this.
Right now, the State of Missouri believes that a full lane is appropriate and safe. This isn’t codified. But it could be. Why not a bill that codifies what Missouri already believes is safe? Why settle for less than we already have? Why give drivers the opportunity to think three feet is safe?
I understand the legal argument Hugh makes. And, to an extent, I agree. So lets get a bill going that gives us what we, as legal users of the road, deserve — a lane.
More on this issue on Carbon Trace:
Comments 3
AMEN! If they have to change lanes, they can’t hit you.
Can anyone find a case where the 3ft law has been a factor in a case against a driver who hit a cyclist?
“That means the defense lawyer can make a very strong argument that a driver was intending to pass at a safe distance. It is completely a matter of judgement, and that means there is no bright line or objective standard that can be brought to bear.”
If you hit someone, it doesn’t matter that you INTENDED to pass at a safe distance (whether that distance is explicitly stated in the law or not), what matters is that you did NOT pass safely. The objective standard is that they hit the cyclist. If intending to give safe clearance was a plausible argument, so would be: “I intended to give that cyclist 3ft, I just have no idea where the right side of my car is.”
The bias that hurts us in the courtroom is a much deeper problem and it will not be fixed by adding an inadequate number of feet of clearance to the definition of safe passing. Quite frankly, this is a tragic distraction from the important work of solving the REAL problems in traffic justice.
Posted 08 Dec 2009 at 11:25 am ¶Keri… Yes, a tragic distraction.
Posted 08 Dec 2009 at 12:04 pm ¶I know of ONE case in which the three foot law has been prosecuted – in Utah. See http://www.bikeforums.net/archive/index.php/t-393462.html
In truth, the defense against a three foot law is exactly the same as against “safe distance.” Namely, “the cyclist swerved right in front of me, I can’t explain why.” This is otherwise known as the “SWSS.” Another classic is “he appeared out of nowhere.”
As in the case of the Texas 14 foot lane exception to the FTR law, this law will not be widely interpreted in favor of cyclists. That law, also intended to help cyclists, is ignored by all. Unlike the three foot passing law, however, if I’m cited, I can use it in my defense when I go to court, so I’ll take what I can get.
One prosecution nationwide – at a cyclist’s insistence, more or less proves the point this is irrelevant “feel good” legislation.
Posted 08 Dec 2009 at 9:40 pm ¶