TROTWOOD v. SELZ
By, Steven M. Magas, The Bike Lawyer
In the summer of 1999 I was asked to become involved with a young man who had received a traffic ticket for “impeding traffic” in Trotwood, Ohio. Little did I know that the case would ultimately garner international intention, cause hundreds emails to be sent to the City of Trotwood, and generate an extremely favorable appellate court ruling that is cited all over the country today!
The case, Trotwood v. Selz, made Steven Selz a household name – at least among that small core of cycling advocates who regularly fight to protect YOUR right to ride on our nations highways. Let’s take a detailed look at Steve’s case to see what all the fuss is about!
I. THE FACTS PRESENTED AT TRIAL
The trial of this case, like most traffic matters, was quick and to-the-point. The Selz case was on the docket with dozens of other matters, but was the only serious trial of the evening on the Area One docket of Judge Connie Price. When Judge Price finally called the case for trial, the prosecution presented only one witness -the officer who gave Steve his ticket. I presented Steve Selz and an expert witness, Allan Byrum.
On July 16, 1999, Steven Selz was operating his bicycle along State Route 49 in Trotwood, Ohio, a five lane roadway with a speed limit of 45 mph. He had stopped a light and was going uphill from the light when Trotwood Police Officer Vance, with lights and siren blaring, pulled him over.
Officer Vance issued a citation to Mr. Selz for “impeding traffic” under a local Trotwood ordinance. At the February 7, 2000 trial, Officer Vance testified that Mr. Selz “…was driving in the middle of the lane…” and was going “…no more than 15 miles per hour…” She further testified that “…cars had to stop and … go over to the other lane to get around him…”
It should be noted that State Route 49 at this point consisted of FIVE lanes, two in each direction with a universal turning lane between them. It should also be noted that Mr. Selz was charged with violating Trotwood Municipal Code Section 333.04(a), for “impeding traffic” and was not charged with a violation of Ohio Revised Code Section 4511.55(A), which requires cyclists to ride “as near to the right side of the roadway as practicable…” This ended up as a critical distinction in the eyes of the court of appeals, as will be discussed below.
My cross examination of Officer Vance focused on attempting to show that Mr. Selz was traveling as a reasonable CYCLIST, as opposed to a reasonable MOTORIST. She admitted that he was traveling at a reasonable speed “for a cyclist.” She also showed a lack of knowledge of the law governing the operation of bicycles on the roadway as she testified that Steve had to stay “X feet from the curb.” Officer Vance also admitted that there was no posted minimum speed on State Route 49.
One of the critical exchanges on cross-examination was as follows:
“Q. Now, is it your testimony that Mr. Selz was riding at a slower speed than he could have otherwise ridden?
“A. A slower speed than he — no.
“Q. He was riding at a reasonably normal bicycling speed, wasn’t he?
“A. Yes, sir.”
Officer Vance had some vague notion that Mr. Selz was somehow in danger because he was riding on State Route 49, a roadway that is, admittedly not for everyone. Officer Vance candidly testified as follows on cross-examination:
Q:I take it your opinion is that State Route 49 is simply a dangerous place for bicycles to be?
It became clear as the trial progressed that the City of Trotwood was going to take the position that if you can’t ride a bicycle at a speed of 45 mph then you can be charged with “impeding traffic.” Further, the prosecutor simply felt that it was “unsafe” to ride on this stretch of State Route 49 and he, and the great State of Ohio, were trying to “protect” Mr. Selz from his own foolishness by ticketing him and encouraging him not to ride this stretch of roadway.
Mr. Selz disputed some of the facts during his testimony. He testified that he was “…going as fast as he could go…” as he chugged up the hill. He denied that he was in the “…middle of the lane…” as the officer testified, but was rather towards the right half of the lane. During the prosecution’s cross examination Mr. Selz admitted that some traffic probably did slow down for him, stating “If they can’t make a lane change, yes, they would have to slow down and not run over me!”
I also tried to establish the plain silliness of the prosecution’s position. Mr. Selz testified that he had only gone 45 mph once in his entire life, and then only on a long downhill run. He testified that it was physically impossible for him to travel 45 mph on a normal flat road, let alone from a standing start at the bottom of a hill!
I also presented “expert testimony” in the form of an extremely experienced cyclist, Allan Byrum. The prosecution stipulated that the expert would testify that Mr. Selz was operating his bicycle in a reasonable fashion and in a competent manner for a bicycle operator on State Route 49 at that point in time. The expert also offered the opinion that Mr. Selz was traveling at a reasonable speed for a bicycle operator and that 45 mph is “…not only an unreasonable speed for a bicycle, it’s an unsafe speed for bicycles…” due to a variety of factors.
Once the facts were before the court, the court heard the arguments of counsel as to whether the City had proved its case against Mr. Selz.
II. THE LEGAL ARGUMENTS
The City of Trotwood Ordinance §333.04(a) states that
“No person shall stop or operate a vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with law.”
The Prosecutor argued that, in essence, if you can’t go 45 mph on Salem Avenue, you should not ride on the road. The prosecution claimed that it was that was “absurd” to allow bicycle operators to “impede traffic” because they can only go “…ten, fifteen, twenty, whatever, miles per hour and therefore become a danger to himself…” This concept of “protecting” the poor bicycle operator came through loud and clear from both the Prosecutor and the Court!
I argued that the most important word in the Trotwood ordinance was the word “traffic.” “Traffic” is what cannot be impeded under the ordinance, so just what is “traffic” under the law?
State law tells us that traffic includes far more than cars and trucks and buses. “Traffic” is defined to include “…pedestrians, ridden or herded animals, vehicles, streetcars, trackless trolleys, and other devices either singly or together while using any highway for purposes of traveling.” Thus a bicycle operator IS traffic — the bicycle operator is part of the class of people PROTECTED by the statute. The bicycle operator is one of those elements of traffic whose movement cannot be “impeded” under the law!
“Traffic,” I argued, is a broad and colorful piece of fabric, with many different threads. Not all “traffic” goes, or is capable of going, 45 mph. By including these slower moving objects in the definition of “traffic” the Ohio legislature [and the legislatures of virtually all 50 states] recognizes that vehicles of various capabilities and speeds are permitted on the roadways. If a vehicle is going as fast as it can on a roadway on which the operator has the legal right to use, how can the operator be “impeding” traffic?
I also argued that bicycles were a unique type of vehicle. Unlike motorized vehicles, the bicycle has an “engine” that tires and has a limited physical capacity. Further, wind and weather impact the speed a bicycle can safely travel, as do potholes, debris and other road hazards. No human on the planet can get a bicycle moving 45 mph uphill and it would be ridiculously unsafe to do so. The legislature is presumed to know the limitations of bicycles [and huge farm equipment and Amish buggies] and, yet, permitted such vehicles to use to the roadways. Their slower speeds are not to be condemned and ticketed – they are to be accommodated!
The trial court, of course, did not buy this argument. The court found Mr. Selz guilty as charged, stating
“…I certainly understand the impassioned defense on this case because I do believe that bicyclists need a place to ride and it is not safe a lot of times to ride it on the streets on 49. I don’t even think I’d ride there at 2:00 a.m. just because of the traffic. I don’t think it’s safe.”
After so “protecting” Mr. Selz from his own self, Judge Price found him guilty of “impeding traffic” and fined Steve $100.00, plus costs. A discussion with Mr. Selz and various bicycling folks then ensued over the question of whether this was a case to appeal.
If the case was appealed and lost, it could be a terrible blow. A loss would mean that any community in Ohio could, in essence, ban bikes from any road on which a bicycle could not meet the speed limit. This would amount to virtually every road in the state as how many of us can maintain a 25 mph pace — the speed limit of virtually every subdivision in Ohio?
I liked the odds of appealing the case. The Second Appellate District has a reputation for being fair and scholarly. I liked our case on both the law and the facts.
There were five judges on the Court of Appeals. Only three would hear an appeal, but you did not know WHICH three you got until you showed up for oral argument. Checking with a friend of mine who once clerked for one of judges on the Second Appellate District, I discovered that two of the five judges were avid outdoorsy/bike riding types of folks who might be sympathetic to our arguments. Of the remaining three, only one was likely to be opposed to our view. The other two would keep an open mind and look closely at the legal arguments. Given this scenario, we decided to proceed with an appeal.
This was the first time in my career that I had cooperated so closely with an advocacy group — The Ohio Bike Federation. Chuck Smith and the OBF were fabulous and I would do it again in a heartbeat. The OBF publicized the case on the webpage, which caused emails critical of Trotwood’s handling of the case to be sent from all over the WORLD to Trotwood.
I also provided the various court documents to be published on the OBF website, www.ohiobike.org. This included my trial brief, the entire trial transcript, my appellate brief, the city’s brief and, ultimately, the court’s decision. Further, the OBF started a Steven Selz Legal Defense Fund that collected money to help cover the cost of an appeal. I agreed to handle the appeal pro bono. However, we still had to “buy” a copy of the transcript and file it with the court.
Before we published all the material online, there were various versions of “the facts” of the case floating around. Publishing the trial transcript allowed the true “facts” of the case to be known. Further, I openly invited comments, criticism and ideas for the appeal and received dozens of emails, mostly friendly, about the case. I had a number of email exchanges with cyclists from all over the country on the case, strategy, arguments and other issues.
Ultimately, the brief was prepared and filed. This was a rather unique brief in that, in addition to typical legal arguments, I described a bit of the history of cycling in the United States and the impact cyclists, specifically the League of American Wheelmen, had in paving our roadways. I wanted the court to understand that cyclists have a 100+ year history of using the roadways and were included in the very first “vehicle codes” ever published. We added the brief to the website.
The City’s brief was also filed. This provided us with some surprises. The City virtually abandoned the view it took at trial. Rather the City now argued that it was Mr. Selz’s position on the roadway as described by the officer, in combination with his “slow speed,” that made the conviction reasonable. This was quite a change from the “get off the road if you can’t do 45mph” attitude the City had taken at trial.
I requested oral argument in the court of appeals. I thought this would be a good way to really push our best points. The City gave notice that its attorneys would NOT be appearing at the oral argument – another surprise and a signal that perhaps they were not going to fight TOO hard on this one.
Oral argument was in Dayton on October 2, 2000. Chuck Smith from the OBF was in the audience. Steve Selz had to work that day. Our three judge panel consisted of one of the “outdoorsy” judges we wanted, one of the “fair/scholary” judges and the one judge we thought would oppose our arguments. I thought the argument went extremely well. I was able to toss in several historical “tidbits” about the development of paved roads without worrying about what the other side would say, since the other side elected not to show up!
On October 20, 2000, the Court of Appeals released its decision – a 2-1 victory for Steven Selz. The dissenting judge was the judge we thought would oppose our viewpoint while the other two felt Steve was wrongly convicted.
The court did a good bit of its own research and cited a case in Georgia involving a slow moving farm combine. In that case, the Georgia court found that operator of a slow moving vehicle, which was traveling at or near its top speed, could not be convicted of “impeding traffic” under a similar law. The Court of Appeals compared the Georgia case to this one and stated:
- “In either case, holding the operator to have violated the slow speed statute would be tantamount to excluding operators of these vehicles from the public roadways, something that each legislative authority, respectively, has not clearly expressed an intention to do.”
The court DID note, though, that had Steve Selz been charged with violating Ohio’s “AFRAP” law [as far right as practicable] the court would have had to uphold a conviction. An “AFRAP” violation is based on lane position. SInce there was disputed evidence as to Steve’s lane position, the appeals court would have been required to accept the facts as found by the trial court. Thus, if the trial court would have believed the officer over Steve as to where on the roadway he was riding, the appeals court would have been bound by such a finding.
In Steve’s case, though, the court was NOT bound by the trial judge’s legal conclusion that Steve was “impeding traffic.” Since Steve’s case turned on an interpretation of law the appeals court was able to say that the trial court simply misinterpreted the “impeding traffic” law.
The appellate decision was picked for official publication and, on May 14, 2001, the case hit the desk of every lawyer in Ohio. This publication gives the opinion increased importance and precedential value.
The appeal was not without risk. However, a reasoned analysis of the risk was undertaken and, with perfect 20-20 hindsight, it looks like we made a smart move. I hope this review of the case helps out someone considering a trial on their bicycling traffic matter! In a future column, I will discuss some tactics, techniques and tricks you can use in fighting bicycle traffic tickets.
If you search for “Trotwood v. Selz” on google, you can find citations and discussions of the case all over the country during these past 10 years or so. What started out as a dinky little traffic ticket has become one of the important victories in the world of “Bike Law!”