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When failure to yield, isn’t

Posted by on October 24th, 2007 at 10:58 am

One of the major questions the community is grappling with after the deaths of both Tracey Sparling and Brett Jarolimek is; why were the truck drivers not given a citation for failure to yield to a bicycle in a bike lane?

The law (ORS 811.050) seems clear:

“A person commits the offense of failure of a motor vehicle operator to yield to a rider on a bicycle lane if the person is operating a motor vehicle and the person does not yield the right of way to a person operating a bicycle, electric assisted bicycle, moped, motor assisted scooter or motorized wheelchair upon a bicycle lane.”

The cyclists in both recent fatalities were legally in the bike lane at the time of the collisions.

“The cops are misconstruing the law in a biased way…We’ve got a system that is designed to exonerate the car driver.”
–Lawyer Mark Ginsberg

After the Sparling incident I asked Traffic Division Lt. Mark Kruger why no citation was given to the cement truck driver. His response was something to the effect of, “We’ve determined that there was just no way he could have seen her.”

Then, at the scene of the Jarolimek collision, Kruger once again painted a picture of circumstances that led his investigators to believe that the garbage truck driver did everything he could to avoid the collision, and therefore would not be cited. Kruger told me that not only had the truck signaled, slowed, and checked it’s mirror, but that his team believed Jarolimek’s high speed down the hill “could have been a factor.”

Over the past two weeks, I have been wrestling with this in my head. What I still don’t understand is,

    If a person willingly moves their vehicle into the travel lane of another vehicle and a collision occurs, should that person be absolved of all responsibility (even if an attempt was made to make sure no one was there)?

KGW reporter Aaron Weiss was also perplexed by this. Yesterday, on KGW’s “Talk of the town” blog, he wrote that the law, “seemed cut and dry to me, but Portland Police see a more nuanced situation.”

When Weiss asked Portland police spokesman Sgt. Brian Schmautz for clarification, here’s what Schmautz said,

“..yielding the right of way, and determining whether a traffic violation has occurred, comes down to a matter of perception. Basically, the driver has to perceive he has to yield the right of way.”

So now, according to an official PPB spokesperson, “perception” plays a role in determining whether or not someone has violated the failure to yield statute.

This was an interesting revelation to me, so I called Portland lawyer Mark Ginsberg this morning to get his input. He did not mince words.

“The cops are miscontruing the law in a biased way. There’s no mental state requirement [also known by its latin name of “mens rea”] for traffic violations. You can accidentally run a red light, or purposely run a red light, either way you are guilty.

What they are saying is that ‘I didn’t see him’ is a good enough defense. It is not.

They [the police] are coming in to these investigations with a confirmation bias and they’re finding facts that back up that bias. We’ve got a system that is designed to exonerate the car driver.”

Ginsberg plans to bring his concerns about enforcement to the emergency meeting being held by Commissioner Adams. He has also requested the presence of someone from the City Attorney’s office, who play a role in interpreting laws for the police.

NOTE: We love your comments and work hard to ensure they are productive, considerate, and welcoming of all perspectives. Disagreements are encouraged, but only if done with tact and respect. If you see a mean or inappropriate comment, please contact us and we'll take a look at it right away. Also, if you comment frequently, please consider holding your thoughts so that others can step forward. Thank you — Jonathan

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bibB
Guest
bibB

A friend of mine who was recently struck by a vehicle was told by the police that the driver wasn\’t ticketed because he wasn\’t hurt enough. He was taken to the hospital by an ambulance, and has been told by doctors that he may never recover to where he was. Now two people are dead and still no citations.

a.O
Guest
a.O

Thanks for this piece, Jonathan. Mark Ginsberg is RIGHT! The text of the law is plain, and the police have no authority to graft other requirements onto it, including perception, speed, or anything else. If you don\’t yield right of way, you commit the offense. End of story.

Now, in light of these public statements, we\’ve got a serious problem in Portland. The police are refusing to enforce laws that protect cyclists. It\’s time for the entire community to come together and DEMAND citations in these cases. The response of the PPB is UNACCEPTABLE and constitutes a total abdication of its responsibility to enforce the law.

PLEASE write, call, etc. Kruger and Potter. Tell them we demand the police do its job.

(As an aside, this is one of the major reason I have in the past stated that police discretion is a very bad thing. And why I don\’t trust the PPB.)

vespa
Guest
vespa

Agreed (with Mark). The law is cut and dry. Wonder why that defense didn\’t work the past time I got a traffic ticket? It certainly wasn\’t my \”perception\” that I was doing anything wrong. If I was driving on I-5 and merged into someone in the neighboring lane, I\’m pretty sure it wouldn\’t be a valid defense that I didn\’t see him if a cop decided to pull me over.

Elly
Guest
Elly

Thank you Mark and Jonathan for bringing such clarity to this point.

I don\’t think cycling has to be a civil rights issue, but such studied, glaring bias in law enforcement (compare with the extremely nit-picking enforcement of cyclists at recent stop sign stings) is a great way of making it one.

Doug
Guest
Doug

I wasn\’t entirely familiar with that part of ORS 811.050, but it makes sense – if bikers didn\’t have some sort of right-of-way entitlement in a bike lane, what would be the purpose of the lane otherwise? We might as well ride with traffic and take up the space of a car if the bike lane offers no protection.

anon
Guest
anon

can a citizen file suit against the police if they feel the laws haven\’t been properly enforced? especially if the results of a refusal to enforce a certain law in one incident gives the public an impression thats it\’s okay to break said law, and then additional collisions occur as a result?

Caroline
Guest
Caroline

If I were the truck driver in this exact circumstance, I would BEG for the darn citation to be handed to me.

And then I\’d quit my driving job.

Steve Brown
Guest

Same thing happend to me in West Linn this summer. Even with witnesses and an insurance company ageeing that the driver was at fault, West Linn police did not issue a citation. I was told they usually do not do so in traffic accidents. It was only the second time it had occurred in West Linn and they saw no reason to change policy. They did however state that Lake Oswego Police would have probably issued one. I really want to know how many bike lane violations and failure to yield citations have been issued by Portland Police and the surrounding communities.

Joe
Guest
Joe

I never knew the police could be so empathetic and sympathetic when the law is broken. Every time I or my friends get a traffic violation (while driving), there\’s no reasoning with them (the police). Maybe I just needed to kill a bicyclist to get out of the ticket.. Seems like their priorities are a little backward… i mean completely backward…

perhaps
Guest
perhaps

a civil suit IS in order, but not against the driver. perhaps portland cyclists can file a suit against the POlice for failure to uphold the law and protect the citizens.

Jonathan Maus (Editor)
Guest

Ginsberg is not the only lawyer who is questioning the enforcement policies of the PPB.

At last night\’s transportation funding town hall meeting, someone was handing out this flyer…

(click to enlarge)

Also, Portland-based lawyer Robert Mionske, who was at the scene of Brett\’s crash and who also writes a national column on bike law for VeloNews Magazine, plans to make this story the subject of his upcoming column…

Me 2
Guest
Me 2

Thank Mark Ginsberg. When I read the KGW blog post I had the same reaction to the PPB\’s explanation of perception. I understand there are laws open to interpretation, but this smacks of bias and I\’m glad we have someone like Mark who can speak up on these issues.

Aaron Weiss
Guest

Just to clarify, the \’quote\’ from Sgt. Schmautz above is me paraphrasing Schmautz based on our phone conversation. I wasn\’t recording the call, so I only included a few short direct quotes that I got down on paper at the time.

I am somewhat taken aback by the hostile tone coming from commenters over on the KGW talk blog — it\’s clear there\’s just as much animosity from drivers angry with cyclists as there is from cyclists angry with drivers.

9watts
Guest
9watts

“it\’s clear there\’s just as much animosity from drivers angry with cyclists as there is from cyclists angry with drivers.”

Except in one case the animosity is entirely concocted, has nothing to do with danger to life and limb, but rather more to do with latent hostilities arising from a desire—as a group—to remain owners of the public roads.

max adders
Guest
max adders

Every time Kruger fails to issue a citation, it spreads the misinformation that the cyclists were at fault. And to many drivers who are already \”fed up\” with the inconvenience of sharing the road (and operating their vehicles in a safe and reasonable manner), the misconception serves to justify this behavior.

The last thing we need are more drivers believing bikes lanes are not \”real\” lanes. I\’ve read a lot of depressingly vile and ignorant comments over the last two days about how the victims are at fault for \”passing on the right\” or \”not being seen\”. Who holds the weapon? And what about responsibility that comes with using it?

That we\’ve had two experienced cyclists killed recently while riding legally, properly attired and presumably aware of their surroundings speaks volumes about what needs to change: drivers.

Citations are certainly not the civil (or criminal) end to these unfortunate interactions. But they\’ll do plenty to spread word that YES, the driver was indeed in error.

9watts
Guest
9watts

That is my concern as well.

Mick
Guest

I am so glad that this issue has gotten some legs. I couldn\’t believe the excuses that Kruger made in the Sparling case. It\’s been obvious to me for quite some time that the PPD does NOT enforce bike lane law.

tonyt
Guest
tonyt

I am so angry right now I can barely even contain myself.

So am I to understand that as a driver, I now have carte blanche to kill pedestrians and cyclists at will, as long as I \”couldn\’t have seen them?\”

\”Seeing\” doesn\’t happen. It\’s an act. It\’s a responsibility that should be enforced by our law enforcement agency.

But now I see that Kruger is part of the executive, legislative, AND judicial branch???

He\’s freakin\’ Dick Cheney!

I think that the message is fairly clear. As a biker, I am on my own. The law is not there to protect me, only to punish me.

Is this the sort of relationship we want a large, and growing, segment of the population ot have with the law? How can we argue against calls for vigilante justice?

To those non-bikers lurking out there. Do you still wonder why bikers are so angry? Is this something even resembling justice?

rixtir
Guest
rixtir

“..yielding the right of way, and determining whether a traffic violation has occurred, comes down to a matter of perception. Basically, the driver has to perceive he has to yield the right of way.”

So if you fail to keep a proper lookout, you can violate right of way, because you didn\’t \”perceive\” that you were doing so.

And if you misjudge the approaching vehicle\’s speed and/or distance, you can violate right of way, because you didn\’t \”perceive\” that you sere doing so.

Uh huh.

Cøyøte
Guest
Cøyøte

I believe that DA\’s office has the ultimate jurisdiction here, and the DA should step up.

In Lane Co. the DA investigates all traffic fatalities. The road is closed, nothing moves, and nobody leaves until someone from the DA\’s office is on the scene to lead the investigation.

Dave J.
Guest
Dave J.

\”Kruger told me that not only had the truck signaled, slowed, and checked it’s mirror,\”

\”checked its mirror,\” what a joke of a statement. I can\’t tell you how many times I\’ve \”checked my mirror\” (as a driver) and then found, upon RE-checking my mirror, that a bike, pedestrian, other car, etc., had suddenly appeared. If they are relying upon the (25 times previously cited) truck driver\’s word on this, they are bigger idiots than I thought.

jonno
Guest
jonno

Isn\’t there a requirement that bicyclists have to ride as far to the right as is \”safe and practical\”? Well, is it safe if the bike lane puts you at significant (and completely foreseeable) risk of a right hook? Sounds pretty unsafe to me.

By that logic all bike lanes are unsafe, and we should do what Doug (#5) suggests — take the lane, all the time. Anything less sounds suspiciously like a suicide pact with car traffic.

Not that I think that\’s a solution, but it\’s where logic leads. Something\’s got to change. PPB enforcing the law would be a good start.

Qwendolyn
Guest
Qwendolyn

Leave a comment with the mayor.

here

I just did.

Mike Lilienthal
Guest
Mike Lilienthal

first of all, im glad some people are actually using these cycling deaths to expand cyclist\’s rights, or at least the enforcement of them. i believe the drivers should be cited, as they did not yield right of way. it doesnt matter if they couldnt see the cyclist or not. are cyclists supposed to take the right of way in the bike lanes unless a truck, without mirrors designed to see objects smaller than a honda, crosses their path.
i am surprised no one has brought this up. its the companys responsibility to equip their vehicles with safety equipment that will allow their drivers to obey the law (and not kill people).
maybe the companies with class b drivers should be penalized more often or higher penalties due their increased death potential?

bike lanes are only as safe as their most dangerous points..

Bjorn
Guest
Bjorn

Does anyone have a printable soft copy of the flyer shown above? (#11) I\’d like to print some out but couldn\’t find an email for the attorney to ask for one.

Bjorn

jason
Guest
jason

The stupidest thing is that a minor traffic citation isn\’t even a slap on the wrist for negligence that leads to someone\’s death, it\’s more like a pat. And the PPD is worried about \”unfairly\” citing drivers? That sounds absolutely ludicrous. Then you can get away with anything in Portland. As long as you think a light is green or you\’re going the speed limit or you\’re not drunk then you\’re just fine.

Here\’s a shot I took of the memorial to Brett yesterday afternoon. I didn\’t know him, but am deeply saddened by his loss and of all the others lost to careless drivers.

tonyt
Guest
tonyt

CALL the mayor\’s office. Phones ringing off the hook will make more of an impact than emails piling up in an inbox.

503-823-4120

As Mayor, he is the Police Commissioner.

Please be very polite to the woman answering the phone.

rixtir
Guest
rixtir

Now I\’m curious. A number of cyclists were ticketed last year for equipment violations. They have steadfastly maintained that their fixed-gear bikes DO have brakes. In other words, they \”perceived\” that their bikes had brakes, and were in compliance with the law.

By Kruger\’s own standards for issuing citations, weren\’t those citations improperly issued?

Jessy
Guest

I like the very top of the flier.

Ignorance is the real enemy.

toddistic
Guest
toddistic

If the law wont protect me, I will protect myself. This includes disregard for traffic control devices, taking the lane, etc. since I can\’t trust the PPD to protect my rights if I am ever in a situation that warrents an investigation. Server and protect, what a farce!

BURR
Guest
BURR

Sgt. Brian Schmautz…said \”that yielding the right of way, and determining whether a traffic violation has occurred, comes down to a matter of perception. Basically, the driver has to perceive he has to yield the right of way.\”

When is being ignorant of the law an excuse when you break it? NEVER!

brian
Guest
brian

I\’m disgusted with traffic enforcement in this state.

What Ginsberg Said \”We’ve got a system that is designed to exonerate the car driver.” Is spot on.

What bibB Said – \”A friend of mine who was recently struck by a vehicle was told by the police that the driver wasn\’t ticketed because he wasn\’t hurt enough.\” is preposterous

What I\’ve seen – In the last month in my commute to work I\’ve witnessed only one traffic stop, it was to a cyclist without a light. And yet I see MANY traffic violations every mile.

Nobody cares about the 50000 who die on American roads. Most people just try to insulate themselves with a big vehicle and hope fo the best. It is the American way. It is stupid and it sucks and it will change someday. I hope I can help it to change. And I hope I will see it change (but I doubt I\’ll see it).

Matt
Guest
Matt

If the police\’s line of argument is that they will refuse to issue a failure to yield ticket to a motorist because the motorist claims they did not SEE a bicyclist….

…then logic would dictate the police should also be refusing to issue tickets to bicyclists at stop signs, if all the bicyclist had to say was that he or she claims THEY did not see the stop sign.

Right?

rixtir
Guest
rixtir

If the law wont protect me, I will protect myself. This includes disregard for traffic control devices, taking the lane, etc. since I can\’t trust the PPD to protect my rights if I am ever in a situation that warrents an investigation.

That\’s a good way to guarantee that an attorney can\’t protect your rights too.

BURR
Guest
BURR

@ #11 The Mayor\’s contact information should also be on that flyer, he\’s the Police Commissioner.

Aaron Weiss
Guest

rixtir,

It was Sgt. Schmautz who used the word \’perceive\’, not Lt. Krueger, but Schmautz was clear that he was referring to enforcing right-of-way laws, so the fixie equipment issue doesn\’t really apply.

To paraphrase our conversation a different way: If a reasonable driver would perceive it\’s safe to turn, Portland Police say it\’s not a violation.

Tristan
Guest
Tristan

Although I believe both truck drivers should be cited, Kruger\’s decision highlight\’s the insanity of our urban street systems; trucks and bikes are simply not compatable on today\’s urban streets.

I\’m not the first to mention on this website that it is a rotten idea to have giant trucks and bikes next to each other on noisy, busy, wet, narrow streets. There is no way a truck driver (or any driver) can constantly keep track of everything going on around him in this environment.

I\’m afraid that until city planners make drastic changes to the urban landscape (i.e. separated bike lanes and alternatives to truck transport), these motorist-bike conflicts will continue to occur.

Let\’s tell the powers that be to GET er\’ DONE!

J
Guest
J

You know, if a police officer was the one on the bike that was hit, this would be a whole different story……

rixtir
Guest
rixtir

It was Sgt. Schmautz who used the word \’perceive\’, not Lt. Krueger, but Schmautz was clear that he was referring to enforcing right-of-way laws, so the fixie equipment issue doesn\’t really apply.

So the PPB is cherry-picking which laws they will enforce?

tonyt
Guest
tonyt

Aaron #34,

with at least 25 citations, I think it is reasonable to say that the garbage truck driver was NOT a reasonable driver.

Jasun Wurster
Guest
Jasun Wurster

Make police reform an issue for Sam Adam\’s campaign.

Another route to create change is to make sure that the police reform is part of the dialog in the upcoming Mayoral elections.

I am very impressed with Sam\’s actions on transportation. However, I have not heard much on how he will direct the PPB when he is Mayor. The upcoming campaign is the time for citizens to set the agenda of elected politicians by getting them to comment publicly how they will enact change. The bicycle community is a very active part of the voting public and it is our duty to ask hard questions and demand commitment when we communicate with those who seek to be our elected officials.

Matthew
Guest
Matthew

Let me get this straight, the only way someone would be guilty of committing that offense is if they deliberately crash into a bicycle in a bike lane? Seems like in situations like that, that you should be charged with assault, or murder, or something like that…

Freaked out Motorist
Guest
Freaked out Motorist

Let me first start by saying that I am one of those motorists that are extremely conscientious and careful and I look in every direction for cyclists, pedestrians, squirrels, birds, etc. I don\’t ever want to be responsible for the taking or hurting of someone\’s life. I have had enough friends and family members die in tragic circumstances that I realize how great the effects are.

I believe that there are many good drivers and many bad drivers. I believe there are many good cyclists and many bad cyclists. I believe there are many good pedestrians and many bad pedestrians. I believe that each and everyone of us need to stop the wars and work together to have safe streets for everyone.

With that said, the thing that freaks me out the most is the possibility of a right hook. I pay attention when I pass a cyclist and I look for them when making a turn. I check my mirrors and I look over my shoulder, left or right. I sincerely feel like I do everything in my power to transport myself safely and in safe consideration of all users of the road.

I also know that there are times when visibility is terrible. There are places where the road curves prior to where I want to make a right turn. In that instance, I can only see a certain distance back, and if a larger vehicle is behind me it further impedes my ability to see what is coming up behind me on my right side. I am terrified that I will start to make the turn and a fast cyclist will come up behind me and run into my car. Even if it wouldn\’t be my fault, I still don\’t want anyone to get hurt! I am also worried about a right hook at night time – Many cyclists do not have lights on their bicycles and don\’t wear reflective clothing. That makes it incredibly hard – even impossible to tell if someone is coming up on my right at night. I am in touch with a cyclist from this board who I am going to send some sketches to to ask him specific questions about areas that have questionable circumstances, and I really appreciate his help.

But in general, I am beginning to wonder if the current right of way law really makes sense. I know that I will get flamed for this, but please understand that I do not mean it offensively, or as an attack, I\’m simply wondering if makes sense for something that is behind something else to have the right of way. It is obviously easier to see what is going on in front of you than what is behind you.

Personally, I would like to see lights, pretty much everywhere. If cars have their own lights, and pedestrians have their own lights, why shouldn\’t bicyclists? Because it\’s expensive and impractical? No! Death is expensive and impractical.

nick
Guest
nick

sooo…

if i am not \”injured enough,\” no citation.

if i die, no citation (i must have done something to deserve it).

hmm. not much room left there. this is frustrating.

it appears the only way to stay relatively safe would be to take surface streets where automobile traffic (usually, hopefully!) stays at or below 20mph, and stay away from major roads. a major road being anything big enough to have a bike lane painted on it.

another solution might be to carry a stick for the purpose of tapping cars in a helpful manner to bring your existence and location to the attention of the driver.

then i could say \”i don\’t know how he could have missed me, i tapped on his windshield to make sure he knew i was there, and he gave me the finger.\” /sarcasm

what is a bike lane, if not a place where bikes take precedence?

i will be emailing the da, sam adams, et al.

nick
Guest
nick

speaking of lights(41), i am going to get one of those dynamo things with a 10-watt bulb or some such.

rixtir
Guest
rixtir

Let me get this straight, the only way someone would be guilty of committing that offense is if they deliberately crash into a bicycle in a bike lane? Seems like in situations like that, that you should be charged with assault, or murder, or something like that…

Kruger is tacking a \”reckless\” standard that doesn\’t exist on to the statute.

BURR
Guest
BURR

@41 bicyclists are required by law to have lights in low light conditions, but bicycle manufacturers have successfully lobbied the Consumer Product Safety Commission to NOT require lights on all new bike sold, because their products \’are not meant to be used at night\’. What a bunch of BS! Can you imagine if you had to buy aftermarket lights for your car or truck before it was safe to drive at night?

Aaron Weiss
Guest

tonyt said: with at least 25 citations, I think it is reasonable to say that the garbage truck driver was NOT a reasonable driver.

You\’ll get no argument from me there. It comes down to what police think is expected of a \”reasonable driver\” in any given circumstance.

rixtir said: So the PPB is cherry-picking which laws they will enforce?

If not cherry-picking which laws, they are certainly making decisions about how to enforce and interpret the failure to yield law.

One might argue that\’s the department\’s job. On the other hand, one might argue that it\’s the job of the police chief, commissioner, and city attorney to provide officers with direction for interpreting and enforcing those laws.

toddistic
Guest
toddistic

Maybe we should just mount air horns on the front of our bikes.

Steve
Guest
Steve

Sam Adams\’ first duty as mayor (and thus police commisioner) should be to rid the dept of Kruger and reinforce in the PPB that cyclists do indeed have rights.

Sam for Mayor !!

Freaked out Motorist
Guest
Freaked out Motorist

@45 –

I agree that that is complete BS!

On the motorist side of that – if mirrors exist that can eliminate blind spots, I think all cars should be required to be manufactured with them..

Jim
Guest
Jim

The problem as others have indicated is that the official police statements(Kruger\’s in particular) contribute to intolerance.

Call the Mayor\’s office and protest.

And what about other ways to make motorists pay attention? Has critical mass died in this town?