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“I AM Traffic” – Getting Out of a Ticket & Revisiting AFRAP

By: Steve Magas, November 16, 2011

I got a call the other day from a fellow, Brent Nimmo, who is an AVID cyclist in the Columbus, Ohio… well… “avid” probably isn’t a strong enough adjective – passionate bordering on fanatical maybe?  This is the story of how this 54 year old diabetic talked his way out of an “impeding traffic” ticket by proclaiming “I AM Traffic,” and maybe, just maybe, educated an Ohio State Highway Patrol trooper.

Alum Creek Road in Columbus is not for everybody.  In fact, most cyclists would agree that it’s not the best road for riding.  It’s narrow, busy, fast, debris and gravel laden and, in 2008, was the road on which cyclist Tracey Corbin was killed.  Brent Nimmo uses Alum Creek when he has to.

In 2010, on “Bike To Work” day no less, Brent was stopped by a cop while riding on Alum Creek Drive and given a ticket for violation Ohio Revised Code Sec. 4511.55 – Ohio’s version of the AFRAP law.  The lessons Brent learned in 2010 helped him immensely a few days ago, when he was stopped again, this time by a State Trooper, for “impeding traffic” on Alum Creek Road.  A bit of a history lesson is needed to help you understand what happened in this most recent stop.

AFRAP 

AFRAP, of course, means, in bike parlance, “As Far Right As Practicable.”  Most states have some form of the AFRAP law.  Ohio’s AFRAP law actually says this:

4511.55 Operating bicycles and motorcycles on roadway.
(A) 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.

The word “practicable” is often misinterpreted by folks as “possible” and some cops, and judges, believe bikes must be operated as far to the right as possible.  The law doesn’t say as far right as “possible” though, but as near to the right side of the roadway as practicable. So what does “practicable” mean?

Tickets under 4511.55 have been pretty rare.  Cops usually don’t look at a cyclist and stop her/him for not riding to the right far enough.  Rather, this AFRAP provision historically comes up after a cyclist is hit and is bringing a claim against the errant motorist.  Some insurance lawyer begins to look at the law and stumbles across 4511.55.  In fact, this AFRAP argument pops up in virtually every “bike case” I handle for a cyclist who has been struck by a car!

The word “practicable” is not defined in Ohio law.  I did a search of the Ohio Revised Code this morning… the word shows up in almost 375 different laws.  In many cases it is used to designate a time -X to be done “as soon as practicable” after Y.  Other “practicable” phrases include:

- “to the extent practicable”
- “so far as practicable”
- “whenever practicable”
- “as uniform as practicable”
- “strictest practicable limits”
- ” as the court finds to be equitable and practicable”
- “as close to the roof as practicable”

… and so on and so on and so on and so on…

I have fought many battles over the word “practicable.”  In Ohio, and in most state, the ordinary and usual meaning of a word is what courts look to when trying to figure out what lawmakers meant to say in a law that has a somewhat looseygoosey or ambiguous meaning.  I have always argued that, for 4511.55 purposes, “practicable” means “safe and reasonable.”

Clearly, I argued, the legislature meant for bicycles to use the roadway – they defined bicycles as “vehicles” and wrote several provisions about operating bicycles on the roadway.  Bicycles have been legally ridden on Ohio roads for over 100 years. I then argued that the Ohio legislature, in its infinite wisdom, would NEVER pass a law that mandated that bicycles, or ANY vehicle, be operated in a manner that was unsafe or unreasonable.  So, I argue, the word “practicable” MUST contain rather subjective elements of safety and reasonableness and must NOT mean “as close to the edge of the road as possible…”  Bicycle operators do NOT have to operate bicycles through potholes, over glass and debris or through the gravel-ized remains of the former “edge” of the road surface!

In cases in which the defense argued that my cyclist violated the AFRAP langauge, I have often retained an expert witness to describe why my client’s chosen lane position was “safe and reasonable” given the conditions – road width, gravel, potholes, debris, glass, drop-off, parked cars, etc etc etc.  I argued that “safe and reasonable” was the test for “practicability.”  These experts were often LCI’s or others who have taught safe, “effective” cycling to the masses.

In 2005 or so, the Board of Trustees of the Ohio Bicycle Federation began discussing revisions to Ohio’s Bike Laws and revising 4511.55 came up.  In the end, we decided to push for a section (C) to this law – a section which would begin to explain a bit about what the word “practicable” meant.  The “(C) Section” was adopted into a package of Bike Law reforms which was introduced as House Bill 389.  OBF fought for this law – many of us testified in Columbus and cyclists in Ohio gained MANY benefits when the bill passed, UNANIMOUSLY, and was signed into law in 2006.  The history of the Better Bicycling Bill can be viewed here.

So…. what is this mysterious “C Section?”  Here is is:

“(C) This section does not require a person operating a bicycle to ride at the edge of the roadway when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway 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.”

 As you can tell, the OBF listened and we made sure the C Section adopted the “reasonable and safe” standard to define “practicable” while listing a FEW, but not all, of the conditions that may give rise to a cyclist lawfully NOT riding towards the right edge.  One of the conditions is when the lane is too narrow for a bike and passing vehicle travel safely side by side.

In earlyl 2010 a friend of mine & OSU Law School Class of 1982 classmate, Doug Morgan, represented a Columbus cyclist who had been ticketed for an AFRAP violation of 4511.55 while “taking the lane” on High Street.  Doug’s not a trial lawyer, but did an admirable job winning the “Take The Lane” case by laying the lane out in open court and marking off with a tape measure the various elements. Eventually, the cop writing the ticket had to concede that the lane was “too narrow” to be shared by bus and bike side by side and the court threw out the ticket.

Now, enter Brent Nimmo – Case 1.  Brent was also cited for an AFRAP violation.  He contacted me about his case and talked to him about 4511.55(C) and Doug Morgan’s elegant defense victory.  I also referred him to The Selz Case and other “impeding traffic” arguments.  Brent did the measurements, took the photos and approached the prosecutor prior to the trial to make his argument.  In light of the cogency of Brent’s argument, the prosecutor elected to THROW OUT the ticket and drop the case.

 

Brent then went on a crusade to get “Bikes May Use Full Lane” signs put up on Alum Creek Road – including PURCHASING a sign.  The photo in the beginning of this article shows off some of his efforts.  When Brent rides, he has a copy of 4511.55(C) blown up and mounted to his bike like a license plate.  He carries my contact information &  a summary of the Selz case with him… it all came in handy this past week!

This past week Brent was stopped again on Alum Creek Road… this time by an Ohio State Highway Patrol Trooper.  He was told he was “impeding traffic.”  Brent has been waiting for such a moment ever since I first told him about Steve Selz… he proudly told the Trooper, “I’m not impeding traffic… I AM TRAFFIC…” and went on the explain the arguments I made in the Selz case, 4511.55(C) and his prior ticket – which he also carries with him.  Brent and the Trooper apparently had a very good conversation about bicycling and the law [Brent asked if the Trooper wanted to talk to his Bike Lawyer] before the Trooper let him go without a ticket.

So… there you go… Prosecutorial Discretion at the street level in action.  I hope the Trooper was truly just concerned for Brent’s safety initially.  Like I said, Alum Creek is not for everybody.  I also hope that the Trooper left with a good understanding of the “impeding traffic” law in Ohio and a better understanding of what cyclists face in Ohio every day!

I think “I AM traffic” makes a good T-Shirt Slogan, eh?

Printed from: http://www.ohiobikelawyer.com/bike-law-101/2011/11/i-am-traffic-getting-out-of-a-ticket-revisiting-afrap/ .
© 2014.

3 Comments   »

  • Carl says:

    The other sign missing from narrow roads tells Ohio drivers they can cross the no-passing lines to pass bikes when it’s safe to pass.

    This should focus drivers and cops on waiting until it is safe to pass in the next lane, rather than feeling trapped behind the bike by the double yellow line.

    Drivers would then patiently wait to pass, as they would with any other slow moving vehicle.
    ——————

    Here is the Ohio law:

    “(A) …where overtaking and passing other traffic or driving to the left of the center or center line of the roadway would be especially hazardous and … appropriate signs or markings on the highway indicate, … every… vehicle … shall obey…. ”

    [ EXCEPT ]
    “(B) when all of the following apply:

    “(1) The slower vehicle is proceeding at less than half the speed of the speed limit….

    “(2) The faster vehicle is capable of overtaking and passing the slower vehicle without exceeding the speed limit.

    “(3) There is sufficient clear sight distance [to meet safe passing laws.]”

    Ohio Statutes: 4511.31

  • Steve Magas says:

    Carl – yes, this change in the “double yellow” law was included in the 2006 Better Bicycling Bill. The statute is 4511.31 and governs “hazardous zones” – the law reads as follows:

    4511.31. Hazardous zones
    (A) The department of transportation may determine those portions of any state highway where overtaking and passing other traffic or driving to the left of the center or center line of the roadway would be especially hazardous and may, by appropriate signs or markings on the highway, indicate the beginning and end of such zones. When such signs or markings are in place and clearly visible, every operator of a vehicle or trackless trolley shall obey the directions of the signs or markings, notwithstanding the distances set out in section 4511.30 of the Revised Code.
    (B) Division (A) of this section does not apply when all of the following apply:
    (1) The slower vehicle is proceeding at less than half the speed of the speed limit
    applicable to that location.
    (2) The faster vehicle is capable of overtaking and passing the slower vehicle without
    exceeding the speed limit.
    (3) There is sufficient clear sight distance to the left of the center or center line of the roadway to meet the overtaking and passing provisions of section 4511.29 of the Revised Code, considering the speed of the slower vehicle.

  • Chris Balcomb says:

    I have a question regarding the picture of the shirt. The State law mentioned does not appear to be Ohio or is it? If it’s not would it read this way for Ohio…
    “State Law 4511.55 (C)”?

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