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Get Legal with Ray Thomas: Oregon’s ‘Safe Passing’ law explained

Posted by on January 6th, 2014 at 3:53 pm

This is the final installment of our three-part series on Oregon’s passing laws written by our legal correspondent Ray Thomas. Read previous parts here and here.

The 2007 Oregon Legislature added an innovative law to the nation’s passing laws when Senator Floyd Prozanski (D-Eugene) reformed Oregon’s bicycle passing laws with a new collection of legal concepts. The new passing law was intended to remedy several factors believed responsible for the tragic death of triathlete Jane Higdon on Territorial Road in Eugene when she and a group of riders were passed by a truck hauling logs.

Here’s the text of the law:

ORS 811.065 Unsafe Passing of a Person Operating A Bicycle

(1) A driver of a motor vehicle commits the offense of unsafe passing of a person operating a bicycle if the driver violates any of the following requirements:

    (a) The driver of a motor vehicle may only pass a person operating a bicycle by driving to the left of the bicycle at a safe distance and returning to the lane of travel once the motor vehicle is safely clear of the overtaken bicycle. For the purposes of this paragraph, a ‘safe distance’ means a distance that is sufficient to prevent contact with the person operating the bicycle if the person were to fall into the driver’s lane of traffic. This paragraph does not apply to a driver operating a motor vehicle:

      (A) In a lane that is separate from and adjacent to a designated bicycle lane;
      (B) At a speed not greater than 35 miles per hour; or
      (C) When the driver is passing a person operating a bicycle on the person’s right side and the person operating the bicycle is turning left.

    (b) The driver of a motor vehicle may drive to the left of the center of a roadway to pass a person operating a bicycle proceeding in the same direction only if the roadway to the left of the center is unobstructed for a sufficient distance to permit the driver to pass the person operating the bicycle safely and avoid interference with oncoming traffic. This paragraph does not authorize driving on the left side of the center of a roadway when prohibited under ORS 811.295, 811.300 or 811.310 to 811.325.
    (c) The driver of a motor vehicle that passes a person operating a bicycle shall return to an authorized lane of traffic as soon as practicable.

(2) Passing a person operating a bicycle in a no passing zone in violation of ORS 811.420 constitutes prima facie evidence of commission of the offense described in this section, unsafe Enrolled Senate Bill 108 (SB 108-BCCA) Page 1 passing of a person operating a bicycle, if the passing results in injury to or the death of the person operating the bicycle.

(3) The offense described in this section, unsafe passing of a person operating a bicycle, is a Class B traffic violation. (Maximum fine of $360.)

While a number of states have legislated specific passing distances, the most common of which is three feet, the Oregon law uses the rider’s “fall over” height as a distance measure, a useful gauge to protect from a side swipe.

The law, which went into effect on January 1, 2008, defines “safe distance” as “sufficient to prevent contact with the person operating the bicycle if the person were to fall into the driver’s lane of traffic.” While a number of states have legislated specific passing distances, the most common of which is three feet, the Oregon law uses the rider’s “fall over” height as a distance measure, a useful gauge to protect from a side swipe.

Specific exclusions from the law are traffic lanes next to a bicycle lane, speeds below 35 mph, or when the rider is turning left. The 35 mph speed limit was a compromise to allow city transit services to travel more closely to riders in a low speed dense traffic environment.

The law limits the passing maneuver to instances where the roadway is unobstructed to avoid the situation where drivers are tempted to “squeeze” by persons on bicycles when there is oncoming traffic. The law makes clear its intention not to authorize passing when it is otherwise prohibited by law, and states that if a passing maneuver in a no-passing zone causes injury or death to the person on a bike then such an act is “prima facie” evidence of the offense, which means that no further proof is necessary to establish the elements of the violation. However, the law does not specifically prohibit passing a rider or group of riders in a no passing zone; instead it attempts to hold a driver responsible for an attempt to pass in a no-passing zone which results in an injury collision, either by the driver failing to yield to oncoming traffic or driving too close to the persons on bicycles.

When the Bicycle Passing Law Does Not Apply

In instances where the passing law is inapplicable, such as where the posted speed limit is less than 35 mph, then the general Oregon passing law will still apply to persons on bicycles being passed by motorized traffic. ORS 811.410 governs passing on the left of another vehicle (including bicycles). It states in relevant part:

811.410 Unsafe passing on left; penalty.

(1) A person commits the offense of unsafe passing on the left if the person violates any of the following requirements concerning the overtaking and passing of vehicles:

    (a) The driver of a vehicle that is overtaking any other vehicle proceeding in the same direction shall pass to the left of the other vehicle at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.
    (c) The driver of a vehicle shall not drive to the left side of the center of the roadway in overtaking and passing a vehicle proceeding in the same direction unless the left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit the overtaking and passing to be completed without interfering with the operation of a vehicle approaching from the opposite direction or a vehicle overtaken.

While the “general” passing law in ORS 811.410 does not include the new “fall over” safe passing distance contained in ORS 811.065, it nevertheless specifies that the passing vehicle must give a “safe distance” to the passed vehicle (bicycle). Where people “buzz” or even hit a rider with their cars when overtaking and passing the “general” rule of ORS 811.410 provides a basis for a traffic citation, even if the new bicycle passing law does not apply because of speed or where the rider is in a bicycle lane. In instances where the driver intentionally “buzzes” the person on a bike then stronger legal measures are called for, like Reckless Driving, Reckless Endangerment, Menacing or Assault; but where the actions are the result of a mistake then the “general” law can still be the basis for a citation by law enforcement or a citizen violation prosecution. A citation for Careless Driving is also likely warranted in most unintentional “close passing” incidents.

“Following Too Close” and Pace Lines

The final portion of ORS 811.065 is an amendment to the “following too close” statute which clarifies that persons on bicycles may lawfully ride in a pace line. The “following too closely” law, ORS 811.485, now specifically applies only to “motor” vehicles, excluding bicycles from its scope. While some members of the law enforcement community may be displeased that persons on bicycles are singled out for more favorable treatment than other vehicles, the law does make a clear statement that bicycle pace lines (where groups of riders are “taking the wheel” of the rider in front in order to draft and reduce wind resistance) exist with the legal blessing of the vehicle code.

Conclusion

Oregon’s passing laws contain legal concepts that allow a fluid, dynamic, and cooperative sharing of the road between road users — whether they’re on a bike or in a motorized vehicle. People are responsible for applying these rules on the road into actual practice. When that happens, the roadways are capable of safe use for all users.

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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Comments
  • Kevin January 6, 2014 at 4:33 pm

    So, has this ever been enforced? like…. ever?

    When I was “buzzed” hard enough with a side-mirror to break it off, the police officer who responded had no interest in citing the motorist.

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    • AndyC of Linnton January 6, 2014 at 6:04 pm

      I like to think of it more like a law for the citizens of the future. It’s good to have on the books so that one day(maybe-perhaps-pray to god-fingers crossed) we actually start enforcing any of the rules of the road , it will be a useful tool.

      Great series. thanks.

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      • davemess January 7, 2014 at 12:24 pm

        Except it is all very vague! I’d rather have a specific 3 feet than “uses the rider’s “fall over” height as a distance measure”.

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        • jocko January 7, 2014 at 1:16 pm

          If you are taller than 3 feet you should stick with what we have.

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    • El Biciclero January 7, 2014 at 11:50 am

      It does sometimes seem as though there is a systemic pattern of attempting to bully cyclists off of roads where they “don’t belong”. As long as there is a driver/law enforcement attitude that believes cyclists are “asking for it” when they ride on certain roads (which roads? Depends on who you ask…), laws like this will have no effect whatsoever. Remember, lots of folks think that cyclists get run over because they’re not wearing helmets, which means they deserve to get run over; the mental disconnect between cause and effect is sometimes astonishing.

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    • Justin January 7, 2014 at 12:35 pm

      When I got nailed by a car that blew a four-way stop, the cop never issued a citation, even though the driver admitted blowing the stop sign.

      The cop also never wrote up a report of the incident. What I was told by the police department was city law states they don’t have to in situations like car accidents and vehicle/cyclist accidents where there was no fatal injury involved. Cyclist/vehicle accidents, where the cyclist is able to walk away, is treated like a minor fender bender, where the involved parties hash it out regarding insurance, claims, etc.

      It’s stupid if you ask me because, in most cases, to win a settlement, you need a case report # or some verification the cops actually knew about the instance.

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      • Kevin January 7, 2014 at 1:13 pm

        You hit the nail on the head about the law that needs to change. If an auto collides with a human, it’s not the same on as a fender bender.

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    • sbrock January 7, 2014 at 2:48 pm

      This law is rarely enforced!! Since 2006 an average of less than 3 citations per year have been issued according to state DMV records. I can generally exceed that yearly average x3 in one trip across St. Johns bridge.

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    • Pete January 7, 2014 at 11:27 pm

      California just passed its 3′ law, and one of the more popular comments about it (in the press) is that it’s “unenforceable.” My response to that is that the coming age of affordable video cameras, including those that sense a collision and commit the previous N minutes to storage, will provide a new arsenal of protection and personal accountability on the roads.

      A few years ago I was commuting home (on a wide shoulder) in evening spring traffic and felt a rush of hot air on my left forearm. It turned out to be engine heat from a Honda Pilot driven by a woman who appeared to be talking on her cell phone. She was probably a foot or so to the right of the white line. Shortly after a CHP officer went zooming by on a motorcycle, and I caught up with him writing her a ticket a few blocks up the road. I’m not sure if the ticket was for using the cell phone, driving over the line, or a carpool lane violation, but the passing law would have given him a tool to educate her specifically on driving safely around bicyclists.

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  • Alan 1.0 January 6, 2014 at 10:40 pm

    Thank you, Ray! Great series!

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  • Ben Fleskes January 7, 2014 at 6:04 am

    Hmm, seems like this would apply for the two bridges on SW Barbur Blvd since the speed is over 35 mph. Myself and other riders gut ‘buzzed’ all the time.

    Thanks for the very informative series.

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  • JeffTB January 7, 2014 at 9:03 am

    I would expect this law to be enforced only when a rider is actually injured (taken to the hospital). Then the officer *might* issue a ticket for unsafe passing. Nothing more. Pay your $75, or whatever the fine and continue on your way. This will do nothing except, maybe give some muscle to a civil suit after a cyclist is injured for life. This will not change drivers behavior or make cyclists safer.

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  • shtuf January 8, 2014 at 12:49 pm

    Thanks Ray!
    This is very helpful to me both as a cyclist and as a driver. I try very hard to be a cautious and safe driver and this helps me to be better informed regarding the rules of the road!

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  • Andy K August 20, 2014 at 10:49 am

    Does ORS 811.065 allow a driver in a 35mph zone to pass a cyclist on the left inside the safe distance, regardless of the automobile speed? The way I read it, the answer is no. If you’re traveling >35mph, no matter what the speed signs say, you don’t get the exception.

    I think this is an important interpretation, although I acknowledge that vehicle speed and passing distance are nearly impossible to enforce “in the act.”

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