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Get Legal with Ray Thomas: Bicycling and Oregon’s passing laws

Posted by on December 2nd, 2013 at 11:50 am

passing
The legal side of getting passed.
(Photo by J. Maus/BikePortland)

Welcome to part one of a three part series on Oregon’s passing laws.

Trying to decipher Oregon’s passing laws are a perfect example of how it’s often difficult to know when (and how) a particular vehicle law applies to someone riding a bicycle. Confusion about application of the rules of the road and vehicle laws sometimes results when frustrated motor vehicle operators turn to the statutes to try to put bicycle riders in their “proper” place on the roadway; but rights and responsibilities of bicycle riders on the roadway are somewhat of a legal hybrid in the Oregon statutes. Frustration of motor vehicle operators must not be allowed to diminish the bicycle operator’s legitimate right to share the traveled portion of the roadway — and even to occupy a full lane when necessary — to avoid surface hazards or other potential dangers. ​

​Of course, for a bicycle operator, the obligation to ride only as far to the right as practicable is the legal “bottom line,” mandated by ORS 814.430, often referred to as referred to by me as the “Oregon Bicycle Bill of Rights”, even though the statute title (“Improper Use of Lanes”) sounds like a prohibition. ORS 814.430 allows riders to maintain occupancy of the entire lane when necessary, even if motor vehicle operators have to slow until riders are able to again ride closer to the right edge.

​One question posed by some drivers is whether ORS 811.425, which describes the violation of “Failure to Yield to An Overtaking Vehicle,” mandates that a person on a bike, as a “slower driver” must move their “vehicle” off the “main traveled portion of the roadway” when overtaken by a faster person in a car. ORS 811.425 states:

Failure of slower driver to yield to overtaking vehicle; penalty. (1) A person commits the offense of failure of a slower driver to yield to overtaking vehicles if the person is driving a vehicle and the person fails to move the person’s vehicle off the main traveled portion of the highway into an area sufficient for safe turnout when:

    ​(a)​ The driver of the overtaken vehicle is proceeding at a speed less than a designated speed under ORS 911.105;
    ​(b) ​The driver of the overtaking vehicle is proceeding at a speed in conformity with ORS 811.105;
    ​(c)​ The highway is a two directional, two-lane highway; and
    ​(d)​ There is no clear lane for passing available to the driver of the overtaking vehicle.
    ​(2) ​This section does not apply to the driver of a vehicle in a funeral procession.
    ​(3)​ The offense described in this section, failure of a slower driver to yield to overtaking vehicle, is a Class B traffic violation.

​In State of Oregon v. Potter (2002), the Oregon Court of Appeals reviewed a Critical Mass rider’s conviction for impeding traffic (ORS 811.130). That law provides “a person commits the offense of impeding traffic if the person drives a motor vehicle or a combination of motor vehicles in a manner that impedes or blocks the normal and reasonable movement of traffic.” At trial, the defendant argued that the statute only applied to motor vehicles. ORS 801.360 defines a motor vehicle as “a vehicle that is self-propelled or designed for self propulsion.” Clearly, a bicycle is not a motor vehicle. “Bicycle” is defined (via ORS 801.150) as a “vehicle” that is “propelled exclusively by human power.”

However, ORS 814.400 provides:

(1) every person riding a bicycle on a public way is subject to the provisions applicable to and has the same rights and duties as the driver of any other vehicle concerning operating on highways * * *, except:
(b) when otherwise specifically provided under the vehicle code.

The court reasoned that because the text of the impeding traffic statute fails to exclude bicycles then it applies to all vehicles, including bicycles. And ORS 814.430 specifically provides in paragraph (c) that bicycles are not excused from compliance with the requirements of ORS 811.425 (the slow-moving vehicle law). While Oregon courts have not provided a definitive legal analysis of the relationship between the two laws, it is quite likely that these statutes would be interpreted to allow bicycles to stay in the travel lane, even if it means holding up overtaking vehicles so long as surface hazards prevent the riders from moving in safety off the main traveled portion of the roadway. After all, ORS 811.425 provides that a slow moving vehicle must only move into areas that are “sufficient for safe turnouts.” If the shoulder or area to the right of the fog line contains glass, gravel, rough spots, or other hazards, the rider has a right not to move out of the roadway.

​And, ORS 814.430 (“Bicycle Bill of Rights”) provides other conditions justifying use of up to the entire lane:

(2) ​A person is not in violation of the offense under this section if the person is not operating a bicycle as close as practicable to the right curb or edge of the roadway under any of the following circumstances:

(c) ​When reasonably necessary to avoid hazardous conditions including, but not limited to, fixed or moving objects, parked or moving vehicles, bicycles, pedestrians, animals, surface hazards or other conditions that make continued operation along the right curb or edge unsafe or to avoid unsafe operation in a lane on the roadway that is too narrow for a bicycle and vehicle to travel safely side by side.

While future appellate cases may provide additional guidance on the relationship between the Rules of the Road, one statutory provision does not trump another — the right of people on bicycles to the road contained in ORS 814.430 provides both a safe haven on the roadway and the right to take the lane when necessary.​

​What is also clear is that people on bicycles must not impede traffic (ORS 811.130(1)), or fail to yield to faster overtaking vehicles (ORS 811.425) when there is an area “sufficient for a safe turnout”. But people on bicycles are not required to place themselves in a position of danger in order to yield to overtaking vehicles; instead, the riders must use good judgement in finding safe areas to move over as space and conditions allow. The narrow width of track of a bicycle allows the rider to utilize the full width of the pavement to allow overtaking vehicles to pass. Unlike a wide truck or trailer, overtaking vehicles can easily go around bicycle riders without requiring that the rider pull over and stop.

​The Potter case serves as a warning for riders that unreasonably failing to yield to traffic or overtaking vehicles may trigger a traffic citation. What the Potter case does not change is the right to take the lane when reasonable necessary for safety, even if it means slowing down overtaking vehicles.

Ray Thomas
(Photo © J. Maus/BikePortland)

This article is part of our monthly legal series with Portland-based lawyer and bike law expert Ray Thomas of Swanson, Thomas, Coon & Newton. (Disclaimer: STC&N is a BikePortland advertiser and this monthly article is part of our promotional partnership.)

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  • spare_wheel December 2, 2013 at 12:29 pm

    I would like to know whether 814.430 enables a cyclist to legally occupy a full lane if they are travelling close to the speed limit regardless of additional faster moving traffic (that is violating the speed limit).

    “A person commits the offense of improper use of lanes by a bicycle if the person is operating a bicycle on a roadway at less than the normal speed of traffic

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    • Paul in the 'couve December 2, 2013 at 12:39 pm

      I don’t have time to look up the sections just now, but last time I looked into this it seemed like there were some additional ambiguities along this line.

      First is the designation of “High way” and when the impeding section was triggered seemed important and also ambiguous. First, if there is more than one travel lane in a direction, the impeding clause seems not to apply. Also, if the road is not sufficiently wide for oncoming traffic to pass then also the impeding statue may not apply. What I came up with (on a thread a year or so ago) was that it seems likely to me that only 2 lane arterials like S.E. 20th or N.E. Alberta would be legitimate places for citing cyclist for violation of 811.425

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    • tony tapay December 2, 2013 at 1:30 pm

      I was passed while doing 20 in the school zone on SE 34th next to Sunnyside, by a mom driving a kid no less (she wasn’t taking the kid to that school btw). I was doing my best to not offer the space for her to pass, but she REALLY wanted to get by me. She then got caught at the red light in the wrong lane because she hadn’t yet gotten around me. Dumb. I doubt if she would have never tried to pass a car in that same spot. Classic, “I gotta pass ’cause it’s a bike!” nonsense.

      Ever since then I’ve been very curious about this very issue.

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    • Champs December 2, 2013 at 2:16 pm

      If you are at or near the speed limit, would it be safe to do anything less than take the lane?

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      • Dimitrios December 2, 2013 at 2:34 pm

        Probably not, but safe and legal aren’t always congruous.

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    • wsbob December 2, 2013 at 2:35 pm

      The full section of 814.430 that you got that excerpt from:

      “…(1) A person commits the offense of improper use of lanes by a bicycle if the person is operating a bicycle on a roadway at less than the normal speed of traffic using the roadway at that time and place under the existing conditions and the person does not ride as close as practicable to the right curb or edge of the roadway. …”

      Look in the statutes; sometimes introducing them, there are definitions for what statements such as ‘normal speed of traffic’ intend as used in the law.

      The statutes don’t permit speeding on the roadways, so it seems unlikely that the speed of road users exceeding a posted speed limit, would qualify as “…the normal speed of traffic…”. To me, this says that someone on a bike, traveling 25 mph…on level ground, that’s spinning right along…in a 25 mph posted or area, like a business district not posted but associated with a standard speed limit…here, 25 mph…would be in compliance.

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      • Pete December 2, 2013 at 6:46 pm

        I agree with this analysis, and can think of a few other factors that would add to making it conditional. The first one I can think of is of course lane width; if there is/not a dedicated bike lane. I frequently ride at traffic speeds outside of bike lanes in California, but our code (CVC 21202) specifically excepts “anywhere a right turn is permitted.” (This is due to the requirement that drivers are to be as close as practicable to the right curb when turning right, even when there are bike lanes, hence there tends to be a ‘merge dance’ with California drivers and bicyclists that’s a little different in practice than in OR).

        The other factor to consider is passing distance (we finally got our safe passing law – yay!). If the driver is not only speeding but passing too closely, there is further ammo in a ‘case.’ I say ‘case’ because as we all know, laws are only as definitive as their interpretations in court when (unfortunately) they are put to the test by defensible incidents.

        I think the bottom line is not how we (or even courts) interpret our ‘bill of rights’, but rather how educated our current and future drivers are as to why, where, and when bicyclists ‘take the lane.’ I give our DMVs a failing grade for this… if they were doing it properly there wouldn’t even need to be blog posts and discussions like this.

        True story: I exchanged pleasantries with an older lady crossing the street at a red light the other day, and she made it a point to walk back and say “Now you be a good bicyclist and stay away from riding near that white line!”. I replied, “Tell you what – let’s make a deal. You go call everyone you know who drives and tell them to obey speed limits and use their turn signals, and I promise I’ll only cross that white line to avoid debris, obstacles, and intersections.” She wasn’t quite sure what to say to that…

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      • spare_wheel December 3, 2013 at 8:34 am

        it’s not at all clear to me whether “normal speed” trumps the “slower driver” language. in fact, law enforcement in other states cite motorists for driving at the speed limit in the left lane of a highway using exactly this type of “slower driver” language.

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        • wsbob December 3, 2013 at 11:00 am

          “…in fact, law enforcement in other states cite motorists for driving at the speed limit in the left lane of a highway using exactly this type of “slower driver” language.” spare_wheel

          Use of the left lane of a two lanes in each direction road is a considerably different situation, because the left lane is primarily for passing. On a two lane, one in each direction road, someone on a bike, going the speed limit, but with, for example, one or more cars behind them, would not by law as I understand it, justifiably warrant a citation.

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          • Dimitrios December 3, 2013 at 11:22 am

            But the scope is different. While the shoulder is an inoperable section of roadway to a motorist it can be a bike lane to a cyclist. A lane wide enough to share with a car is effectively two lanes. The requirement to move over is based on options. Cyclists have more: sometimes to our benefit, sometimes to others, and most of the time to both :)

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            • wsbob December 5, 2013 at 12:20 am

              What you’re trying to say, isn’t clear. Read the ORS 814 statutes, and some of the 811 statutes. That’ll make you the exception, because most people probably don’t read them…they just get on the road and boogie.

              Really, the statutes are just clarifying and articulating common sense, in a more formal manner. It should not be too hard to figure out, that if the road ahead is clear for a long way ahead, passing some guy on a bike, even if the road has double yellow lines, is no big deal, if the person driving is certain…they can do it safely.

              Which incidentally, brings up an interesting collision that occurred in Colorado not so long ago…discussion over at bikeforums/A and S if you want to look for it…dink-a-link truck driver tries to pass, decides he can’t make it, then decides to crash into the person biking that he was trying to pass, rather than be in a head on collision with a motor vehicle.

              The ‘must yield to faster traffic’, is also kind of a common sense situation, but some people manage to make it impossibly complicated: go figure.

              I may not be checking back to this comment section, so good luck!

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  • Andy K December 2, 2013 at 1:23 pm

    Here’s another passing question.

    I get passed often on SW Humphrey, SW Broadway (uphill), and NW Skyline (uphill) on blind corners with double yellow solid stripes. There have been way too many close calls where I think the car passing me is going to swerve back into the lane into me to avoid a head-on collision, like Johnny Hoogerland in the 2011 Tour de france.

    If no bike lane is present, can a vehicle legally cross the double yellow centerline to pass a slower vehicle (typically a bike) or are they supposed to wait until the biker finds a “safe turnout”? For this question, assume neither vehicle is exceeding the speed limit.

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    • Champs December 2, 2013 at 1:58 pm

      In a previous post by the same author, yes!
      http://bikeportland.org/2011/08/19/on-rock-creek-road-an-openly-hostile-road-user-galvanizes-the-community-57963

      Common sense still applies, of course—you can’t blindly encroach on the opposite travel lane.

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      • 9watts December 2, 2013 at 5:41 pm

        I looked at the link you provided but didn’t find Thomas’s statement about double yellow lines and bikes. I’ve long wondered about that double standard:
        On a bike I have to wait at a red light at a T-intersection as if I were in a car, even though treating the light as a yield and proceeding as my narrow self wouldn’t interfere with any traffic; yet on a curvy road my two-wheeled vehicle’s narrowness somehow excuses the driver of a car overtaking me from obeying the rules about double yellow lines.

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  • Alex Reed December 2, 2013 at 2:19 pm

    Anyone know if there is case law on whether the door zone counts as a hazard? I ride as if it does, and would hope that Oregon law would support me….

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  • was carless December 2, 2013 at 3:11 pm

    So if cycling on roadways is illegal, can we have the state drop a few hundred million $$$ to build off-street cycle paths like in the Netherlands? I promise to never cycle on a highway again if there is one handy!

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  • Garlynn December 2, 2013 at 3:17 pm

    I’ve got a follow-up question, but this relates more to drivers: Is it legal for a car to move to the right into a bike lane, if all wheels otherwise remain on the pavement, for the purposes of passing on the right a vehicle that is stopped waiting to make a left-hand turn?

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    • Chris I December 2, 2013 at 5:41 pm

      Not legal. I know someone that got a ticket for this. The bike lane is not a legal travel lane for cars.

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      • Garlynn December 2, 2013 at 6:02 pm

        Hmm, people do this all over the place, so this is obviously a point that isn’t driven home very well in driver education campaigns…. but, obviously it is a potential safety issue for cyclists (to the point that drivers might not always check their mirrors before performing such a maneuver).

        Of course, this is also an argument for more bulb-outs, which can pretty much eliminate this as an option at intersections… which synchs with my personal preference for engineering over enforcement as tools for achieving real change.

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    • jim December 2, 2013 at 8:03 pm

      If the bike lane doesn’t extend through the intersection a car can pass in the intersection.

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  • bendite December 2, 2013 at 7:37 pm

    I’m probably being generous if I said that 20% of the drivers in Bend know it’s illegal to drive in the bike lane

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  • jim December 2, 2013 at 8:01 pm

    That mini van in the picture is over the double yellow line that you aren’t supposed to cross.

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    • bendite December 3, 2013 at 7:16 am

      I’m fairly certain a driver can cross the yellow line when they’re passing a cyclist.

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      • Dimitrios December 3, 2013 at 10:40 am

        I couldn’t find any legal support for this in the passing or bicycle section of the Oregon driver’s manual.

        “You may cross the center line in a no-passing zone only if the right
        side of the road is blocked or if you are turning left into or from an alley,
        driveway, intersection, or private road” Page 46

        “The same rules for passing other vehicles apply to bicycles. Be aware
        that you must follow the rules of the road in no passing zones as noted
        on Pages 45-46. If you can not pass safely, you must slow down and
        remain behind the bicycle until it is safe to pass” Page 83

        However, I have no issue with the practice based on paint alone. It seems obvious that whether the yellow line is solid/dashed is based on max speed limit passing distances. It becomes less relevant when encountering cyclists on roads like the one pictured.

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        • wsbob December 3, 2013 at 11:26 am

          Dimitrios…for the actual text of the law, go here:

          http://www.oregonlaws.org/ors/811.420

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        • spare_wheel December 3, 2013 at 12:23 pm

          the oregon driver’s manual is just a guideline — it’s the actual statutes and their interpretation that matter.

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          • Dimitrios December 3, 2013 at 1:18 pm

            Are their any legal interpretations that would shed some more light on this? At some point an exception would have to be defined where “obstruction or condition” applied to slow moving vehicle/bicycle. As the statute is written, I don’t see any implication that the speed of the person/mode of travel indicates an “obstruction or condition”. The statue becomes self-nullifying if “obstruction or condition” is someone moving slower than you want to move.

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            • wsbob December 4, 2013 at 12:11 am

              Search the statutes…you may find a definition. A bike, moving slower than the speed limit, similar to agricultural equipment in that respect, could pose an obstruction to faster, speed limit traveling road users. It’s not necessarily such a big deal to pass on a double yellow line marked road, to go around an obstruction, but some people make it so.

              Do a search of bikeportland’s archives for the Rock Creek Rd guy. For awhile, he was making a big stink, refusing to pass people on bikes on lightly traveled roads out in the country, despite traffic being visibly clear for hundreds of feet ahead…generally making a nuisance, tailgating and honking.

              A bunch of complaints finally made their way to officials and outspoken citizens, bringing some legal minds to fore. They searched out the statutes, and pointedly explained from them that it can be o.k. under the conditions detailed, to cross the double lines to pass someone on a bike.

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  • jim December 2, 2013 at 8:06 pm

    I notice on roads like N Williams that when a bike is in the marked bike lane, a car does not move over at all, even if the bike is riding on the outside edge of the bike lane, or side by side cyclists.

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  • Joe December 4, 2013 at 9:38 am

    Seems like the areas that have ” no ” bike lane ” like country roads are the hardest for some ppl to share the road.. its like this big truck or car zips past you as if to say hey move over and get off the road… I can tell when someone that knows the law and passes allowing 3feet it puts a smile on my face.. but most will zip you in narrow sections its a greed of the road way I feel and mixed up values with some ppl, law breakers cops never catch, bikes are a mode of transport too. oh and catching ppl at Red lights after they blew past you ugh… crazy.. construction zones sometimes we need the lane :) cars jockey with bikes for right of way :(

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  • Spiffy December 4, 2013 at 12:56 pm

    where is the term “driver” defined in ORS? I thought that term excluded bicycles…

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