Graduate Degree in Bicycle Law

Bicyclists and the California Law

by Brian DeSousa

Vice President, California Association of Bicycling Organizations (CABO)

Recent events in the news have illustrated the need for motorists and bicyclists to “share the road”.  Yet often times both motorists and bicyclists are often unaware of bicyclists’ rights and duties. Therefore, this article takes a look at laws governing bicycling on roadways in California. (Disclaimer: I am not an attorney, but I have spent my own time reviewing laws applicable to bicycling.)

Your Position on the Roadway

When looking at bicycling law, is it sufficient to only look at the state level, or must we also look at local ordinances? Here’s what the California Vehicle Code (CVC) has to say:

21.  Except as otherwise expressly provided, the provisions of this code are applicable and uniform throughout the State and in all counties and municipalities therein, and no local authority shall enact or enforce any ordinance on the matters covered by this code unless expressly authorized herein.

Since operation of bicycles on public roadways is covered by the vehicle code, cities and counties are preempted from such regulation.  Areas where localities are given authority to regulate are sidewalk bicycling (allowed unless prohibited) and registration of bicycles (can only be required for residents).

The “enabling law” that allows bicyclists to use the public roadways is as follows:

21200.  (a) Every person riding a bicycle upon a highway has all the rights and is subject to all the provisions applicable to the driver of a vehicle by this division, … except those provisions which by their very nature can have no application.

“Highway” is a vehicle code term for a public road or street. (Bicyclists are allowed to use any public road that is open to motorists, with the exception of prohibited freeways.)  “Provisions applicable … by this division” refers to the rules of the road in the vehicle code. So although bicycles are defined as “devices” elsewhere in the code, bicyclists are required to follow the same movement rules as vehicle drivers.

What does this mean for bicyclists?  First, 21650 requires driving on the right half of the roadway, and on roads two or more marked lanes in one direction, 21658 requires being completely within a lane.  There are other laws that require stopping at stop signs and red lights, making right turns from the right side of the street, making left turns from the left turn pocket, etc.

Does this mean bicyclists can ride in any lane they want?  Drivers of slow moving vehicles have an additional requirement:

21654.  (a) Notwithstanding the prima facie speed limits, any vehicle proceeding upon a highway at a speed less than the normal speed of traffic moving in the same direction at such time shall be driven in the right-hand lane for traffic or as close as practicable to the right-hand edge or curb, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway.

Therefore, drivers of slow moving vehicles are required per 21654 to use the right most lane (the “or close as practicable to the right” wording would only be controlling on roads without marked lanes) unless passing another driver or making a left turn. Also, per 21656, a driver of a slow moving vehicle on a two lane road is required to move over to allow five or more vehicles are waiting behind to pass.  Neither restriction applies to bicyclists who are not slower than traffic.

So far, the operating rules for bicyclists are identical to those for motorists. However, on roads without bike lanes, bicyclists have an additional law that regulates roadway positioning:

21202.  (a) Any person operating a bicycle upon a roadway at a speed less than the normal speed of traffic moving in the same direction at that time shall ride as close as practicable to the right-hand curb or edge of the roadway except under any of the following situations:

(1) When overtaking and passing another bicycle or vehicle proceeding in the same direction.

(2) When preparing for a left turn at an intersection or into a private road or driveway.

(3) When reasonably necessary to avoid conditions (including, but not limited to, fixed or moving objects, vehicles, bicycles, pedestrians, animals, surface hazards, or substandard width lanes) that make it unsafe to continue along the right-hand curb or edge, subject to the provisions of Section 21656. For purposes of this section, a “substandard width lane” is a lane that is too narrow for a bicycle and a vehicle to travel safely side by side within the lane.

(4) When approaching a place where a right turn is authorized.

(b) Any person operating a bicycle upon a roadway of a highway, which highway carries traffic in one direction only and has two or more marked traffic lanes, may ride as near the left-hand curb or edge of that roadway as practicable.

While this is similar to 21654, the key difference is that while it is sufficient to be anywhere in the right most lane to comply with 21654, a bicyclist must share the right most lane per 21202 unless certain conditions apply.

Note that the word “practicable” gives a cyclist more latitude than the word “possible”.  One example is a road with on street parking – while it would be possible to ride close to the parked cars, it would not be practicable to do so due to the potential of being hit by a parked car door.

When the exceptions to 21202 apply, slower moving bicyclists do not have to comply with the “as close as practicable to the right” provisions of 21202, but they are still required to use the right most lane per 21654.  One example is the exception for lanes that are too narrow to safely share. In that case, a bicyclist may choose to “control the lane” by operating in or near the center of the right most lane to discourage close passing within the lane.

The exception for “approaching a place where a right turn is authorized” not only gives bicyclists latitude to be far enough left to avoid a motorist overtaking and then making a right turn across the bicyclist’s path, but it also allows bicyclists adequate clearance to avoid being too close to motorists pulling out of driveways and intersections.

Note that a shoulder is not part of the roadway (although it is part of the highway) and therefore its use is allowed per 21650 but not required.  Bike lanes are part of the roadway and are regulated per 21208.  The wording of 21208 is similar to that of 21202, except the “as close as practicable to the right” requirement is replaced with a requirement to use the bike lane.  Since bicyclists may want to leave the bike lane for operating reasons similar to avoiding the right hand edge, the exceptions to 21208 are also similar to that of 21202.

Complying with the “as close as practicable to the right” provision of CVC 21202 is not required for lanes that are too narrow to safely share. But who gets to decide what is too narrow to safely share?  Most of us at one time have been in lanes that are marginally wide enough for a motorist and bicyclist to fit side by side when stopped, but where you’d be passed too close for comfort if you tried to share the lane when moving.  So wouldn’t it be reasonable that a bicyclist should have latitude to use his own judgment in determining if the lane is shareable, especially because he is the one who suffers in the event of error?

The reality is that a bicyclist’s judgment is subject to second-guessing by police officers and the courts. There have been several cases in California and other states where bicyclists have been unfairly cited for not being “as far right as practicable”, and anyone who has been to traffic court knows that police testimony carries significant weight.  This puts the burden on the bicyclist to justify his choice of lane position to the court.  If a bicyclist is to have the latitude to choose whether or not to share a lane for his own safety, then why would there even be a law that essentially says “you must share the lane unless you can prove it’s not safely shareable” – a duty that is required of bicyclists but not any other slower drivers?  So the best that we can do under current law is to educate motorists, bicyclists, and police that there are cases where a bicyclist needs to “control the lane” for his own safety.

Video clips illustrating bicyclists operating in cases where the exceptions to 21202 and 21208 apply are available at http://www.cyclistview.com/exceptions.htm.

Bicyclists Traveling in a Group

Here is where things get a bit tricky. A common question is whether bicyclists riding in a group have to ride single file. Nothing in California law explicitly requires bicyclists to ride single file or prevents them from riding two or more abreast.  However, some police officers have argued that single file is required, because the bicyclist on the left is not riding “as close as practicable to the right-hand curb or edge of the roadway” per CVC 21202.  But on the other hand, strictly speaking the bicyclist on the left cannot ride farther to the right, because of the presence of the bicyclist on the right. Furthermore, there’s no law prohibiting any two road users from driving side by side within a lane – so riding two abreast is arguably legal because it’s not illegal.

Nevertheless, such an interpretation requiring single file would only be applicable in those instances where a lane is wide enough for a motorist to safely share with single file bicyclists, but not with bicyclists who are two or more abreast.  If a lane is too narrow for a single bicyclist to safely share with a motor vehicle, then CVC 21202 doesn’t apply, and since a single bicyclist slower than other traffic can be anywhere in the rightmost lane per CVC 21654, it would follow that the group may use the whole right lane.

In addition, bicyclists may lawfully ride two or more abreast on the shoulder, because the shoulder is not part of the roadway, and therefore not subject to the provisions of CVC 21202.  Likewise, bicyclists may ride abreast, one on the roadway and one or more on the shoulder. Finally, bicyclists may ride two or more abreast in a bike lane, as CVC 21208 regulating bike lane use, requires at most that they ride within the bike lane, without specifying any particular position in it.

Furthermore, the “as close as practicable to the right” provision of CVC 21202 (as well as the mandatory bike lane use provisions of CVC 21208) only apply to those bicyclists traveling “at a speed less than the normal speed of traffic moving in the same direction at such time.” Clearly bicyclists moving at the speed of other traffic, which is common on downhills or in slow urban traffic, are not subject to the provisions of CVC 21202 or 21208, and so a group of bicyclists may use the whole right lane. In addition, where the traffic at a certain time consists predominantly of bicyclists (as might be the case with a club ride on a lightly traveled road), their speed determines the “normal speed of traffic … at such time”, and they would arguably also be exempt from CVC 21202/21208 and may also use the right lane. However, to my knowledge this has not been tested in court.

But regardless of what the law says, we as bicyclists should strive to be cooperative with other traffic when it is safe for us to do so. On a rural two lane road, that might mean switching to single file if needed to make it easier for a motorist to overtake, reverting to two abreast after the motorist passes.  On the other hand, it seems ridiculous that a large group of bicyclists is expected to be strung out in a bike lane on a six lane roadway when there’s little traffic on an early weekend morning.  It is especially frustrating when bicycling according to this expectation does nothing to facilitate motorist overtaking (since there are other lanes available for passing) and actually causes more delay to motorists making turns or pulling out of driveways or cross streets, compared a group of bicyclists using the whole right lane.  It also does nothing to decrease our risk and may even increase it, since most car/bike crashes are from turning and crossing movements, rather than from faster traffic approaching from behind.  The only way to try to change these attitudes is for the bicycling community to be involved and work with local governments in the places we ride.

Many thanks to Alan Wachtel, whose article “Bicycles and the Law: The Case of California” provided much background information for this article.  Alan’s article is available here: http://www.cabobike.org/articles/bicycles-and-the-law

If a traffic light doesn’t turn green

At one time, I would have argued that a traffic light that won’t change for me is “inoperative” under the following vehicle code section, and that I could proceed through the intersection when safe to do so:

21800 (d) (1) The driver of any vehicle approaching an intersection which has official traffic control signals that are inoperative shall stop at the intersection, and may proceed with caution when it is safe to do so.

But closer examination of this in the context of the rest of that section of the vehicle code, indicates that “inoperative” applies only in the case of the signal going dark in all directions. So there’s currently a major hole in the vehicle code, in that there’s nothing addressing what to do if a signal doesn’t change – not just for cyclists, but for motorists too!  Back in 2003, CABO and CBC tried to fix this as part of some vehicle code updates to clarify the law as applied to cyclists, but that bill was never passed.

So what is a cyclist to do in this situation? In practical terms, it really comes down to what a police officer would consider safe and reasonable.  When I’ve had discussions with police on this issue, the context has generally been a left turn signal that doesn’t detect my bicycle, and due to my early morning commute there’s no other traffic to trigger the signal.  A long while back I’ve had one police officer tell me that I would have to dismount and use the crosswalk in that situation.  Of course, there would be no one to press the pedestrian “walk” button, so I would then be jaywalking!  But in more recent discussions with other police (some of who are bicyclists themselves), there seems to be more tolerance of the concept that a cyclist should be allowed to make the left turn when safe to do so.

The best advice I can give is that if you can see the wires in the pavement, know where to place your bicycle to give yourself the greatest chance of being detected to avoid the problem in the first place, as shown here:  http://www.cyclistview.com/signaldetection/slide04.htm

Does the law against following too closely apply to cyclists in a paceline?

Here’s the relevant vehicle code citation:

21703.  The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon, and the condition of, the roadway.

Note that this applies to the “driver of a motor vehicle”.  Cyclists have the same rights and duties as “drivers of vehicles”, but only “drivers of motor vehicles” have additional requirements such as licensing. Therefore, “following too closely” only applies to motorists, not cyclists.  That makes sense when you consider that a motorist following too closely has the potential to harm the road user in front, but if a cyclist is drafting another and wheels touch, it’s generally the rear rider at risk of falling, not the cyclist in front.

CA has two “safe passing laws,” why did we need the new one?

Here the first law, enacted many years ago:

21750.  The driver of a vehicle overtaking another vehicle or a bicycle proceeding in the same direction shall pass to the left at a safe distance without interfering with the safe operation of the overtaken vehicle or bicycle, subject to the limitations and exceptions hereinafter stated.

[But beyond that, in 2014 CA legislators passed our 3-Foot Passing Law.  It' failed to pass first time around because it was so poorly written by California Bicycle Coalition and their lobbyist that Governor Brown vetoed it in 2012. Now thoroughly watered down-- it leaves it up to the motorist to determine what space and speed is "safe" to pass-- it became law in 2014. --Admin]

Advocates for “3 foot” laws have used a legislative approach to fixing what is essentially an education and enforcement issue. I’m sure that explains why there has been no tangible improvement in motorist passing behavior is those states that have enacted “3 foot” laws.

Furthermore, wording such as “at a safe distance” allows for flexibility due to varying roadway and speed conditions that can’t be accounted for in the vehicle code.  Why would I only want 3 feet, when motorists pass each other with greater distance at a lower speed differential?

However, in the situation where there is a close pass but no physical contact, a cyclist being passed closely by a motorist has much more to lose than a motorist being passed closely.  Therefore, I do support stronger penalties when such a violation occurs, which brings me to the next question.

What about special laws to protect “vulnerable users”?

In 2006, ABATE, a statewide motorcycling advocacy group, endorsed SB 1021 (2006 Bowen), which created this section of the Vehicle Code:

21070.  Notwithstanding any other provision of law, a driver who violates any provision of this division, that is punishable as an infraction, and as a result of that violation proximately causes bodily injury or great bodily injury, as defined in Section 12022.7 of the Penal Code, to another person is guilty of the public offense of unsafe operation of a motor vehicle with bodily injury or great bodily injury. That violation is punishable as an infraction pursuant to Section 42001.19.

Many cycling advocates who want to create a class of “vulnerable users” may not be aware of what our motorcycling friends have done for us. The simplest and most effective fix would be to increase the penalties for a violation of this law.

For more information, refer to the “Rights and Duties of Cyclists” video at http://tinyurl.com/rightsandduties, the article “Bicycles and the Law: the Case of California” at http://www.cabobike.org/articles/bicycles-and-the-law, and the California Vehicle Code at http://www.dmv.ca.gov/pubs/vctop/vc/vc.htm.