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Posts Tagged ‘Vulnerable User Law’

While there hasn’t been a vulnerable roadway user bill introduced in Alaska yet, the concept is gaining momentum nationwide.

Three states already have vulnerable user laws on the books (Oregon’s took effect in 2008, and Delaware’s and New York’s took effect this year), and more states are introducing the bills. Vulnerable roadway user bills mandate stiff fines, loss of license and/or other penalties when the driver of a motorized vehicle severely injures or kills a pedestrian, bicyclist, wheelchair user, motorcyclist or construction worker.

On Monday, April 18, Washington’s State Senate voted 44-2 to accept House amendments to SB 5326, its version of a vulnerable user bill that now goes to Gov. Christine Gregoire for her signature. Cycling and walking advocates in Washington have been trying to pass a vulnerable user bill for three years, but the bill usually ended up dying in committee. This year the Senate and House both passed their own versions of the bill by large margins, then the Senate bill crossed over to receive House approval (with amendments) and now can go to the governor.

“The real crux of this bill is that outcomes matter,” David Hiller of the Cascade Bicycle Club told the Sammamish Patch website. “A DUI with a death is not a DUI with a tragic outcome; it’s vehicular manslaughter. If you have an unsecured load in your vehicle, it’s simply an infraction; but if you kill someone, it’s a felony.”

Image from sharethedamnroad.com/

Image from sharethedamnroad.com/

Possible fines would range from $1,000 to $5,000, and drivers charged under the bill would lose their licenses for 90 days. A driver could reduce the fine to $250 by showing up in court, completing a traffic safety course, and doing 100 hours of community service.

“It will hopefully encourage people to behave more responsibly around populations that are defined as vulnerable,” Hiller told Sammamish Patch, although “we’ll have to watch it closely to see if it has its desired effect.”

New Mexico also had a vulnerable user bill moving through its state legislature, and HB 68 even passed unanimously in the House (68-0). Unfortunately the bill died in a Senate committee and won’t make it to the governor’s desk this year. Even if a bill passes, New Mexico bike/pedestrian advocates worry about a possible veto from Gov. Susana Martinez, who already vetoed SB 124, a bill that would have given New Mexico the nation’s first statewide five-foot passing law (Albuquerque and Los Alamos have local five-foot passing laws) that passed the House and Senate with relative ease.

According to the League of American Bicyclists blog, on April 11 the Maryland State Senate passed HB 363, which creates a new misdemeanor level offense: vehicular negligent homicide. This closes a loophole that had let negligent drivers off with mere traffic fines for killing other road users, while still allowing for felony level charges to be brought in instances of gross negligence such as  drunk driving. Guilty drivers will face up to 3 years in jail and up to a $5,000 fine. According to the Baltimore Sun, the House accepted the one Senate amendment to the bill and it has been sent to the governor to be signed.

Vulnerable user bills with varying language also were introduced in the Rhode Island, Connecticut, Nevada, Michigan, Massachusetts and other states. In other states, such as Florida, recent fatal “accidents” involving cars/trucks and cyclists/pedestrians have led to a demand for vulnerable user bills. In February, Dan DeWitt of the St. Petersburg Times wrote this column promoting a vulnerable user law for Florida in response to a recent series of fatal wrecks in the Tampa area (at least 15 cyclists killed since mid-2010). A similar series of deaths in Wisconsin during 2010 prompted Tom Held of the Milwaukee Journal Sentinel to write this appeal for a Wisconsin vulnerable user bill on Sunday.

In 2009, the Texas Legislature overwhelmingly passed a vulnerable user bill (25-5 in the Senate, 140-5 in the House), but Gov. Rick Perry vetoed it after the legislative session ended and the legislature wasn’t able to get back together to override the veto. Now, several Texas communities are bypassing Perry’s veto by passing localized vulnerable user laws. Earlier this month, Denton became the eighth Texas community to pass a local vulnerable user law.

For those wanting to learn more about vulnerable user laws, Ray Thomas of the Portland law firm, Swanson, Thomas and Coon, played a large role in crafting Oregon’s bill, which has become the model for many states. Thomas’ law firm’s website has a page devoted to vulnerable user laws and also posted a YouTube video. There have been similar laws on the books in many European countries.

One reason for vulnerable user laws is recent research shows the vast majority of car-bicycle wrecks occur at the fault of the driver, not the cyclist (at fault fewer than 10 percent of the time in one study by Charles Komanoff and the Right of Way organization of New York). Cyclists, pedestrians and others are the most vulnerable because there is no protective metal shell around them like there is in a car.

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Image from ghostbike.org

Image from ghostbikes.org/

There’s good news out of New York and Delaware this month, as the governors of those states signed legislation creating “Vulnerable User” laws to protect pedestrians, cyclists, wheelchairs and other users of our road system that don’t have a metal cage surrounding them as they travel at high speeds.

New York Gov. David Paterson on Aug. 13 signed what locally is called “Hayley and Diego’s Law,” which honors Hayley Ng and Diego Martinez, two young children who were killed when an idling and unattended van slipped into gear and rolled backward into a group of pre-school children in New York City’s Chinatown. The law sets up an intermediate charge — a traffic violation called careless driving — which prosecutors can use in cases where a conviction on a charge of criminal negligence or recklessness seems unlikely.

Paterson signed a second law on Aug. 13 that should also keep dangerous drivers off the road. Under Elle’s Law (named after Elle Vanderberghe, 3 years old at the time, who suffered serious brain injuries when a motorist backed up through a crosswalk on 82nd Street to grab an open parking space), any driver who causes serious physical injury to another person while committing a traffic violation will automatically have his or her license suspended for a period of six months by the DMV. Drivers who have been involved in any similar incidents within the previous five years will have their licenses suspended for a full year.

Image from sharethedamnroad.com/

Image from sharethedamnroad.com/

A day earlier, Delaware Gov. Jack Markell signed SB269, the state’s first vulnerable users law. The bill, modeled after an Oregon law, enhances the penalty for drivers convicted of careless or inattentive drivers who cause serious physical injury to cyclists, pedestrians and other vulnerable road users. The new law includes sentencing guidelines, such as completion of a traffic safety course, perform up to 100 hours of community service related to driver improvement and providing public education on traffic safety, fines up to $550 and suspension of driving privileges.

These two new vulnerable user laws make Delaware and New York the third and fourth states to pass these laws that protect the most vulnerable users of our roads. Oregon was the first state to pass such a law, which is modeled after similar laws in the Netherlands, Denmark and other countries. Texas passed a similar law last year only to have it vetoed by Gov. Rick Perry. Several other states, including Washington, Virginia and California, are debating similar bills.

The Seattle-based site Publicola on Aug. 20 made a good case about why all states need vulnerable user laws, and an excerpt is quoted below. Additional information about vulnerable user laws was in this previous post on this site.

It’s shameful that our state legislators could not pass the vulnerable users bill last session. The bill, introduced by Seattle Sen. Joe McDermott (D-34), would have imposed stricter penalties on negligent drivers who kill or seriously injure vulnerable roadway users such as bicyclists and pedestrians. Unfortunately, the bill never even made it to a vote.

Of course, there are times when drivers are not to blame. People are people and prone to doing stupid things regardless of whether they’re traveling by bike, foot, or car. The goal of the law is not to place an unfair burden on drivers. It won’t punish a driver who accidentally hits a biker who runs a red light or a pedestrian who absentmindedly steps out into the street. It will, however, create an appropriately stringent punishment that matches the level of responsibility required to drive a fast, high-powered, 2,000-pound metal vehicle around vulnerable roadway users (pedestrians, cyclists, wheelchair users) who have just as much legal right to use the road as drivers do. If a driver makes the choice to take his or her eyes off the road to answer the phone, fiddle with the radio, or reach for cigarettes maims or kills someone, “I didn’t see them” should not absolve them of responsibility.

Opponents of the vulnerable users law argue that there are already negligent driving laws in place to punish drivers who maim and kill bicyclists and pedestrians. But drivers go unpunished often enough to justify more specific laws that carry the sort of weighty penalties that might make people reconsider their driving habits.

How vulnerable are pedestrians and cyclists? The Greater Greater Washington site recently began plotting on a map the locations of pedestrians and cyclists who are hit by cars, and the site posts a weekly update so residents can get a better handle on the carnage. During the week ending Aug. 29, there were 13 pedestrians and four cyclists hit by cars in the downtown Washington, D.C., area.

In many cases when a pedestrian or cyclist is struck by a car, the blame tends to be directed at the vulnerable user or you get excuses from the driver like “he came out of nowhere, I didn’t see him.” While that is true in some cases, a Toronto physician, Dr. Chris Cavacuiti, recently published a study that showed that in the vast majority of cases the car is at fault in a car-bike collision and not the cyclist. Dr. Cavacuiti’s findings showed the cyclist was at fault in less than 10 percent of these wrecks.

Even though cars are at fault in the vast majority of car-bike or car-pedestrian crashes, many prosecutors fail to charge the driver, and in some cases the driver doesn’t even receive a simple traffic ticket. That can leave the victims and/or their family’s feeling violated. A good example of this frustration can be found in this post on Florida’s SWFBUD blog by cyclist Ed Collins, whose father LeRoy Collins was struck and killed by a lady driving an SUV on July 29 while riding his bike in Tampa. According to Ed Collins, the lady who killed his father will have no points on her driving license and no jump in insurance because she was not charged.

It’s so rare to see a driver charged when they hit a pedestrian or cyclist (unless the driver was drunk or driving very recklessly) that is was kind of a surprise to see a grand jury in Fairbanks last week bring charges of manslaughter against a 55-year-old driver who allegedly ran a red light and killed a 14-year-old cyclist. If a vulnerable user law can make drivers have to think about the consequences of their careless driving, maybe they will become safer drivers.

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Photo courtesy of Bicycle Commuters of Anchorage

Photo courtesy of Bicycle Commuters of Anchorage

Living in Sitka, I’ve sort of been out of the loop on what’s happening with the Title 9 rewrite of the Anchorage traffic code (see previous post). There have been a few minor updates, but a meeting hosted on Aug. 5 by the Municipal Traffic Department was postponed when major stakeholders had conflicts. I have not heard if the meeting has been rescheduled and there has been no new meeting time listed on the Municipality of Anchorage’s Title 9 Rewrite page.

The “Flashlight” column by Scott Christianson of the Anchorage Press did have this information in its Aug. 5 issue.  The Cyclelicio.us blog from California also had a write-up on the controversy. A cyclist using the handle “Pokey” did post on the Alaska Spokes forum (scroll down) a response he received from Anchorage Assembly member Paul Honeman (a retired Anchorage Police Lieutenant who serves on the Public Safety Committee) about a week ago, and in his response Honeman said it is unlikely that a highly restrictive measure against bicyclists will move forward.

The two main pieces of the Title 9 rewrite that bicyclists and pedestrians should look at are Sections 9.20 and 9.38. The Bicycle Commuters of Anchorage said it objects to the language in two key clauses, which were outlined on the BCA website:

A reminder of the wording BCA is objecting to in Title 9.38.060

“Persons operating a bicycle upon a sidewalk, recreational trail or bike trail must yield the right-of-way to traffic before crossing a roadway, street, or driveway.”

and section 9.38.020

“A person propelling a vehicle by human power upon and along a sidewalk, trail or pathway, (or across) except when crossing a roadway or driveway intersecting a sidewalk, trail or pathway, shall have all the rights and duties applicable to a pedestrian under the same circumstances.”

This is placing the burden of responsibility on the must vulnerable users, children riding their bicycles on the sidewalk.

Personally, I think the Municipality of Anchorage is going the wrong way on this issue. Instead of shifting the responsibility for safety to cyclists and pedestrians, the Municipality needs to pass a Vulnerable User Law, something similar to what the State of Oregon passed in 2007 (HB 3314, scroll down) and currently is under discussion in several other states, including Washington, California and Virginia. These laws already exist in bicycle friendly countries such as Denmark and The Netherlands.

Basically, a Vulnerable User Law strengthens the traffic code to protect bicyclists, pedestrians, wheelchair users, roadway construction crews and other people who might be legally in a public roadway from careless drivers. The laws create enhanced penalties for careless drivers who cause serious injury or death when they hit somebody who falls within the vulnerable user classification. Since the driver has the most protection, he/she has the greatest responsibility for safety. Portland lawyer Ray Thomas wrote this explanation of Oregon’s Vulnerable User Law and provides some backstory about why they felt the law was needed. He also explains the law in this YouTube video.

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