Is it Legal for a Cyclist to Cross the Center Yellow Line to Pass a Car?

A few days ago we got this inquiry from a law enforcement friend who wanted our take on this issue:

“Hey Megan - quick ? if I may on something we were debating: If a motorist can cross a double-yellow (when safe) to pass a slower bicyclist, can a bicyclist cross a double-yellow to pass (when safe) a slower motorist? Example, Going down Lookout Mountain, and a car slows at the speedbump, and the bicyclist behind the car takes the opportunity to pass the car but crosses the double-yellow to do so.”

That’s a negative, ghost-rider.

A motorist is given the right to cross the center yellow line to overtake a cyclist in the context of the 3-foot law. C.R.S. 42-4-1005 describes limitations on overtaking on the left, and states that its mandates do NOT apply:

(d) To the driver of a vehicle passing a bicyclist moving the same direction and in the same lane when such movement can be made in safety and without interfering with, impeding, or endangering other traffic lawfully using the highway.

In other words… when read together with Colorado’s 3-foot law (C.R.S. 42-4-1003 , see more here or here), the law allows a driver to give a cyclist three feet when overtaking them to their left, which means they MAY cross the center yellow line - WHEN SAFE TO DO SO- in order to provide the cyclist a minimum of three feet.

This is not a speed issue, it is a safe-passing-buffer issue.

Compare that to a cyclist crossing a center yellow line to pass a vehicle on the left …. here, we do not have a 3-foot buffer concern…. and the rider is simply passing a motor vehicle as a result of speed, overtaking a slower-moving car, such as in the example cited above when a driver slows the vehicle down for a speed bump (or any other slowing reason, such as heavy traffic, wildlife, you name it).

In addition —the law reads that if your motor vehicle speed is such that it is impeding traffic, you are required to pull to the shoulder (or right lane) and let others pass you -C.R.S. 42-4-1103(3)(a)(b). However, we don’t see that a motor vehicle momentarily slowing down for a speed bump coming down the mountain constitutes "impeding traffic.”

As such, we conclude that cyclists are not legally permitted to overtake vehicles by crossing over the center yellow line.

It is also notable that on places like Lookout Mountain Road, Golden Gate Canyon road, or any other number of canyon or mountain roads where a cyclist can easily reach or exceed the posted speed limit, riders may be tempted to overtake vehicles doing the speed limit. This is a NO-GO. It is not only incredibly dangerous, it is illegal. At the speed limit, cyclists may take the lane and descend in the middle of the traffic lane. But if they come up on the back of a vehicle doing a slower speed, they need to wait behind the vehicle. This is safest, and it’s the legal maneuver. **Also-remember that you can be cited for speeding, and be subject to the same fines and penalties on your bike as in your car (except for driving points -you cannot be docked driving points when you’re operating a bicycle).

Please — don’t ever cross a center yellow line while you’re descending down a canyon or mountain road and don’t overtake motorists on their left by crossing the center line. Be safe. Ride in your traffic lane, at the speed limit, and arrive home safely.

Jeffco DA’s Office Declines To Charge Driver with New Vulnerable Road User Law

By Maureen Massidda, Content & Connections Director

Judge’s Hands Tied at Sentencing Due to Plea Deal

“It’s really shameful that laws were not appropriately applied and sentencing guidelines watered down in this instance.” R. Hill

“People get punished more for hitting other cars than they do for hitting people. Disgusting.” Mc Crowell

“She caused a permanent head injury to a cyclist, and she gets community service? Not enough.” M. Willimas

“As a cyclist who's also been hit, this is frustrating and pisses me off that the purpose of the new law was ignored. Can’t she at least be made to repaint bike lanes or forced to log those hours riding a bike in traffic to hopefully increase her awareness and that hitting a cyclist is a big deal?” D. Miller

“There’s no lesson in that sentence. What I don’t understand is if there is a new law on the books why was the old law used?” P. McCarthy

Outrage, disappointment, and disbelief. Those are just some of the sentiments cyclists are expressing via social media channels after the Jeffco DA’s Office decided not to charge a driver with Colorado’s new VRU law, aka, careless driving resulting in serious bodily injury (SBI) to a cyclist, which by definition is a vulnerable road user (VRU). Instead, the DA’s Office offered the 19-year old driver a plea deal charging her with careless driving resulting in injury, a mere 4-point violation.

The driver walked out of court without losing her driver’s license. She is headed off to vet tech school in Las Vegas, NV where she will be able to keep driving her car around cyclists and other vulnerable road users. She will not have to take public transportation, ride a bike, or walk to get around. Her life will not be impacted like that of the cyclist she hit.

However, every aspect of the cyclist’s life has been disrupted following the crash:  work, sleep, health, training, and social activities.  The cyclist, our very own Megan Hottman, sustained serious bodily injuries to her left knee and a concussion. Her injuries required two MRIs, numerous appointments with specialists, and months of physical and vestibular therapy. She missed time from work and training due to her injuries and could not race the Transrockies Run for which she had been training since January. Doctors diagnosed her with post-concussive symptoms after headaches and nausea forced her to leave work repeatedly. Megan, who had perfect vision before the crash, now wears glasses due to visual disturbances from this collision. Her relationships suffered due to her erratic moods (typical in a brain injury) and inability to process information and emotions. The impact of these injuries is lifelong and will be part of Megan’s life going forward. 

If you have met Megan, you know that the bike is more than an avenue of recreation for her; it is her primary form of transportation. She rides her bike to work, the bank, doctors’ appointments, yoga, and the store. Her car sits in the garage for weeks at a time. She has ridden thousands of miles across the country, including the Midwest, Nebraska, Kansas, Missouri, rural North Carolina, downtown Manhattan in the heart of New York, and all over Colorado, including downtown Denver. Alone last year in 2018, she rode 10,000 miles on her bike.

On the day of the crash, May 29, 2019, Megan was commuting from work to her home on her e-bike, with a stop at the bank around 3:00 pm. Less than a mile from her house, on a road she uses daily, she was doing everything right: riding in the bike lane, wearing a white helmet, in broad daylight, not wearing headphones, looking over her shoulder for traffic, obeying traffic rules, etc. 

Photo taken by Arvada PD Drone

From behind, Megan became aware of a red Subaru approaching and glanced to her left to see the car’s turn signal on as the vehicle drew even right next to her.  Megan saw the driver looking ahead, not to her right, so Megan hit her brakes aware that the driver was about to make a right-hand turn directly in her path. The driver was 100 percent unaware that Megan was in the bike lane to her right.  

Megan was upset but relieved that she had been able to avoid a crash. She was then surprised by a second car immediately on the bumper of the first car. While Megan managed to avoid the first car, she was unable to take any evasive action when the driver of the second car turned right into Megan’s bike. This driver did not have her turn signal on. Megan had no chance to avoid her, and her left arm hit the right side mirror, breaking it off of the car. The bike went right, and Megan fell to her left “highside,” landing on the ground on her left hip and thigh.

Immediately, Megan felt the impact on her left femur bone. Her left forearm hurt from the mirror impact, and both knees also hurt, likely as a result of both hitting the top tube of the bike.  Megan remained on the ground perfectly still. The driver got out of her car, and Megan yelled at her to call the police. She could hear her fumbling for her phone and was saying “I’m so sorry, I’m so sorry.”  Megan yelled back that she had to check bike lanes for cyclists before turning right. 

She could hear people stopping and getting out of their cars coming over to check on her.  One of the first people on the scene was an off-duty EMT. He came over and asked Megan what hurt, did a check of her left hip, and then pushed on the area that hurt.  

In the moments after the crash, something occurred to her that she never thought about in all these years of representing injured cyclists:  “I felt ashamed, embarrassed, alone, and vulnerable there on the ground. I cried. I was aware of five or ten people standing over me.  I could see cars pulling over and stopping and heard sirens approaching. I was aware of the “Scene” taking shape around me. I wanted to disappear. It felt so awful,” says Megan. 

One thing that surprised Megan was how many spectators wanted to move her bike and belongings from the point of impact (POI).  Knowing they were trying to help, she politely declined. Again, and again, and again. She wanted the scene preserved and rightfully so- Arvada PD later brought out their drone to conduct overhead and scene investigation and measurements.  Had either the bike, or the car, been moved prior to that, there would have been no way for them to do their diligence in this regard. (So- note to bystanders, don’t move things at the scene, please, unless instructed to do so by the authorities on scene).

A fire truck arrived and blocked off the road.  Several Arvada PD cars came, followed by an ambulance. Paramedics put her on a stretcher and loaded her into the back of the ambulance.  They took her vitals and checked her leg to see if there was any bruising or a bone sticking out.

As soon as Megan could get her phone, she texted her ortho doctor and set up an appointment for the following morning. Knowing that she had made an appointment, paramedics released Megan from the ambulance. 

Ironically, on that that very day, just a few hours earlier, Governor Polis had signed Senate Bill 19-175 into law which increases the penalties for careless driving resulting in SBI to a VRU. According to C.R.S. 42-2-1601 (4)(b), SBI is defined as “injury that involves, either at the time of the actual injury or at a later time, a substantial risk of death, a substantial risk of serious permanent disfigurement, or a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.”

 When local bike advocates and lawmakers proposed this law and got it signed into law, the intent was to revoke the privilege of driving from someone who hits and harms a cyclist, so that they may be forced to ride a bike, or walk, or use public transit to get around for a period of time. “Until drivers lose their privilege of driving, and have to ride bikes or walk to get around, the driving behavior towards cyclists doesn’t change,” says Megan.  Of course the law is also intended to punish the driver, and to cause some mild inconvenience in their life, a mild fraction of the inconvenience and pain the collision caused to the injured cyclist.

The DA has a low burden of proof (BOP) to utilize the VRU law: They need only prove (1) careless driving (same as they would normally do for a four-point careless charge) (2) plus SBI (doctor signs a form saying injuries were serious bodily injuries, a term of art as defined by statute) (3) plus VRU (cyclists are defined as VRUs so this is met automatically). 

The facts in this case are clear in our opinion:

1.  Arvada police cited the driver with careless driving causing injury.

2. Megan’s doctor provided a signed SBI statement confirming that her injuries rose to the level of serious bodily injury. He checked TWO boxes, noting fracture and impairment of the use of the knee.  

3. Cyclists are defined as VRUs, so Megan was a VRU.

Yet, the DA’s Office decided not to charge the driver with the new law or take this case to trial. We take serious issue with that. Megan asked the DA’s Office to elevate the charge against the driver using C.R.S. 42-4-1402.5, the VRU law, which if convicted, would mean the driver loses 12 points on their license, and the Department of Motor Vehicles would revoke their license for a period of time. Instead, the DA’s Office offered the driver the four-point careless charge causing injury as a plea bargain.

Wondering why? This decision was made because DA Office staff members disputed Megan’s SBI despite the SBI form signed by her orthopedic doctor.  He would never put his professional credibility on the line if he did not read the statutory definition of SBI and agree with it. The staff was adamant that if the case went to trial on the VRU charge, they would “not prevail” on the element of SBI with the jury due to some remarks in Megan’s medical records that reference “normal knee.”  This overlooked the other pages and comments about the diagnosed tear in Megan’s knee, as well as the MRI findings which also diagnosed the tear in her knee.  

Due to the lesser charge of careless driving with injury, County Court Judge Harold Sargent was limited in his sentencing options. He did not have the authority or ability to take the driver’s license away.  He could only choose between fines, restitution, community service, or jail (which was not requested here). He ordered the driver to 50 hours of community service (Megan had asked for 200), nine months of unsupervised probation, and required her to take a road safety class. The judge assessed four points to her license.

“Bike Jeffco strongly supported passage of the Vulnerable Road Users Bill. We thought it could help make our streets safer for cyclists and pedestrians. Its desired impact can’t be realized if it’s not applied in cases it’s designed for. ”

— Charlie Myers and the Bike Jeffco Board of Directors

It is disappointing and frustrating that the Jeffco DA’s Office is not on board with using the new law to protect cyclists and punish drivers who hit, harm, or kill them. Just one week before Megan’s case, in another case in Jeffco County, the DA’s Office offered the driver a plea deal. Our client suffered SBI including spinal fractures, a broken shoulder, and damage to his internal organs.  The DA’s Office decided to charge the VRU 12-point, but then offered the 8-point reckless charge to the driver. No license revocation.  No real setback. A mere $100 fine and 100 hours of community service.   

Megan has volunteered her time and energy to train Jeffco Sheriffs, Golden PD, Arvada PD, as well as providing a webinar on cycling law and safety to the DA Statewide Council. She sat on the 1st Judicial District Board and worked for a District Court Judge in Jefferson County.  She lives in Jefferson County, owns and operates a business there, and owns residential and commercial property in Jeffco. 

“I really felt like living and working here and being so involved in this community would count for something,” says Megan.

During sentencing, Judge Sargent addressed the driver.  He reminded her that she was very lucky she had not KILLED Megan, and that if she had, they’d be having a very different discussion.  He told the driver that she was not paying the degree of attention that Megan and other cyclists deserve. He asked how many cyclists have to be hit before drivers understand that cyclists use bikes as transportation and stated that we have to protect a vulnerable group. When addressing the community service he had ordered, Judge Sargent said he wanted the driver to find something meaningful and something that will benefit others in the cycling community. He told the driver that she cannot change what she did, but that she can change the future and have an impact. She can be the person who can tell others how easily cyclists can be hurt or killed.

Unfortunately, we do not believe that the driver’s behavior is going to change with just four points and 50 hours of community service. She will move on and forget all about this event, but Megan surely will not. “I don’t believe in this country we are going to have a change in driving behavior until drivers lose their privilege of driving for a period of time, whether it’s 30 days or six months. Someone who has to get around by bike, or get on the bus, or ride the light rail is going to be really careful how they drive around cyclists. It’s for that reason we have the new law,” said Megan when addressing the Court.

Imagine ten years from now. This driver will likely not recall any of this. However, if she loses her license at age 19 for several months, this lesson will stick with her for a lifetime. Maybe she will even tell her friends and family. And as a result of her losing her license, a lot more people would drive more carefully around cyclists. Driving is a privilege, and she should have lost it.

That is what we want, need, and demand from this county to make cycling safer.

We need DAs to stop giving plea deals to drivers. Charge the full 12-point violation or take it to trial. Period. This is the only way drivers lose 12 points, resulting in their driving privileges being revoked. We have a new, amazing law, and it is not being used.

“A lot of people representing a variety of perspectives worked incredibly hard to craft and pass the Vulnerable User Law. This is a good law and it is very much needed in Colorado. Failure to implement the law undermines the efforts of those who worked so hard to pass it and more importantly, undermines the rights of the people the law is intended to protect. ”

— Pete Piccolo, Bicycle Colorado

This was an avoidable crash. It was not an “accident.” 

Drivers need to be held accountable!  And for the first time ever, we have a new law to accomplish that here, for any crash that occurs on or after 5/29/19.  

 Click here to view 9News’ coverage of the sentencing hearing.

TRANSCRIPT:

(UPDATED: TRANSCRIPT IS POSTED-CLICK BUTTON AT RIGHT). Our request for cameras in the courtroom was denied (because we were not notified of the hearing plan by the DA until 6:00pm the night before, and these requests require 24 hours processing time).

ELECTION 2020:

There are several DAs throwing their names in the ring to run for the 2020 Election of Jeffco’s new DA, now that Pete Weir’s 2 term limits prevent him from seeking re-election.  Stay tuned as we tell you which DA we believe will enforce this law and protect cyclists in 2020 and beyond.  

SUBMIT YOUR COMMENTS:

In the meantime, if you have a comment you’d like to submit to the Jeffco DA’s office, you can send it here: 

https://www.jeffco.us/FormCenter/District-Attorney-40/Contact-the-District-Attorneys-Office-138

Finally — a note from Megan: to those who believe that only pushing for more bike infrastructure is the way, and that focusing on punishment is not effective. First, stop twitter-trolling and go do something productive.  Second, actually get involved doing something, join a committee, donate money to groups like Bicycle Colorado and People for Bikes, attend meetings, vote in city council planning sessions and so on; get off your computer or smartphone and take some demonstrable action (otherwise, we don’t want your opinions). Bike infrastructure doesn’t magically appear. Third- it’s not mutually-exclusive. We can attack bike safety on both fronts, at the same time: put in more bike lanes and protected bike paths, AND also punish drivers who harm cyclists. BOTH.

Video: Let's Ride Safe // Let's Drive Safe.

Huge thanks to our friends at Golden Police Department, Oxotic, Panache, and Bionic Giant, for their help on this project! 

Enjoy ; ) 

Just Do the Right Thing!

Client Story- by Maureen 

Distasteful, despicable and unethical! That is how Scott describes his experience dealing with State Farm after his 15-year old son was involved with one of their drivers.

A competitive mountain biker and road cyclist, Ian, Scott's son, was out on a ride in his neighborhood in Golden, CO trying to get in 100 miles of training that week. It was just a little after 6:00 pm on May 15, 2016 when Ian was heading north on Washington Avenue. As he was coming down the hill, a car on Washington Avenue and 14th St. made a left hand turn right in front of him.                                  

Ian was unable to stop in time to avoid a collision and ran into the rear passenger door of the car. When Officer Austin Beck from the Golden Police Department arrived, Ian was lying on his back on the roadway. He was incoherent and was not able to tell the officer what had happened.

Ian was transported by ambulance to St. Anthony’s Hospital for possible head injuries. It was determined that Ian had suffered a hairline collarbone fracture and a concussion. He also had a cut near his eye and contusions all over his body.

Scott was notified by the hospital... “It’s a sinking feeling when you get a call from the ER to say that your son has been hit by a car.”

The driver was cited for failing to yield the right of way. He was driving his girlfriend’s car; she was riding in the front passenger seat.

Following the collision, Ian experienced memory loss, and his cognitive functions were not as strong as normal.

On behalf of Ian and Scott, we filed a claim with the car owner’s insurance company. GEICO readily paid policy limits (minimal). However, due to Ian’s high medical bills and other costs, we also filed a claim with State Farm, the driver’s insurance.  State Farm refused to take responsibility!

The Fromm family decided to pursue litigation and hired us to represent them. State Farm came up with several reasons for denying the claim:

• They refused to pay because they claimed that the driver was not at fault.

• They claimed that the driver was not insured with them at the time of the collision.

• Attorneys for State Farm even suggested that the crash could have occurred in a different way than was stated in the police report.

They went as far as questioning Officer Beck’s qualifications and experience at investigating traffic crashes. The driver and his girlfriend even pushed responsibility on Ian stating that he was riding too fast.

Scott described his family’s experience in their road to get a recovery from the insurance company as a very stereotypical experience: “What happened is what I expected the experience to be. They are going to deny everything. It’s about enriching themselves, not insuring the insured.”

About a year and a half after the crash, the case went to mediation. Scott said that he was in a very uneasy place at that point. All he wanted to do was to settle for Ian’s sake. Ian had come to him before mediation and told his dad that he just wanted to get it over with. “It was the right decision, but we just wanted to be compensated for our losses,” said Scott.

Scott, also a cyclist, strongly believes that bicyclists are treated like second-class citizens even though they have the same rights as motor vehicles. “Your rights will be less. If my son was in a car, (I believe) State Farm would have paid.”

State Farm used tactics that delayed the Fromm’s claim from being paid out. Over 800 emails were exchanged with the clients/opposing counsel/experts during this case.  DENY. DELAY.  “That’s a dodging tactic to not pay out the claim,” said Scott.

Following mediation, State Farm continued to further delay payment by insisting that Scott and Ian’s Social Security numbers had to be provided before the check would be issued- contrary to the CMS rules and forms, and contrary to standard practice. 

Scott encourages bicyclists who have been injured to hire an attorney when dealing with insurance companies. “You could try to fight it yourself, but you would not be successful in recovering for your loss without an attorney.” “If I didn’t have Megan, we would have a different outcome. We would have been worse off.”

Megan adds some additional advice in situations like this one: "prepare to dig in for a long fight.  Insurance companies will bully and delay and drag on and on.  Treat this as an endurance sport. They will try to wear you out.  We are here to keep you fueled, motivated, and willing to go the distance. Resilience is key."  

What needs to change so that bicyclists are safer on the roads in Scott's opinion?

• More legislation needs to be passed to protect bicyclists and their rights.

• Governments need to make the investment to improve roads for bicyclists.

• Drivers need to be more patient around bicyclists. Our culture is impatient.

The entire experience has left Scott fearful and has him thinking about switching from road to gravel biking. He wants to know where Ian is at all times now.  He and his family will move on from this experience, but he does have a message to insurance companies. “Just do the right thing!”

Bike Ambassador Team Blog: Commuting Delivers Daily Joy

Guest Blog post by I-Ling Thompson, Bike Ambassador

More than Miles, Bike Commuting Delivers a Daily Dose of Joy

Just shy of two years ago, we decided to move from the trail mecca of Golden, Colo. (complete with across-the-street trail access) to Denver. While I loved having trail access out my front door, I found climbing in a car to go anywhere exhausting and tough on my carbon consciousness. We found a darling, yet woefully dated bungalow in West Highland that offered a #ridemoredriveless daily lifestyle, shaved my daily commute to 15 minutes by bicycle, and served up plenty of renovation projects to keep us busy.

Our first year was hard – city life was dramatically different than rural Golden. The parking hassles, the noise, pavement everywhere…despite my best intentions to ride everywhere, I found the adjustment to city life difficult and old car habits were hard to break. Add to that my work and travel schedule kept me off the saddle and behind a desk more than ever…the days of carefree riding, simply opening my garage door to roll out on canyon roads or dirt felt foreign and beyond distant.

Interestingly, I found a daily dose of sanity by reaching for my bike to make that 15-minute commute to work. I chose between bikes lanes, bike paths and neighborhoods roads to pedal out the day before and behind me. And despite traveling upwards of three weeks a month, I strapped on my helmet to commute 96 times. The simplicity of grabbing my bike to go to work, dinner or the grocery store is indescribable. My commute became my joy and the system of bike paths around Denver, my new stomping grounds. I finally invested in a cruiser bike, complete with rechargeable lights, a rear wheel lock, fenders, a basket and a grocery getter pannier. The neighborhood was an old friend now, and I knew it’s streets. It wasn’t the foothills of Golden, but it was pretty awesome.

When my second spring rolled around, the quiet streets of West Highland blossomed into an entirely new neighborhood. My morning commutes were fragrant with spring flowers, and train of commuters on my route home brought familiar comfort when my days ran into darkness. I was now going days without moving my car. I added Lyft, walking and begging rides from hubby to my commute mix.

Even bigger this year, my hubby and I took our first cycling vacation. Rather than rent a car, we explored Norway by bike for eight days. The experience of riding our bikes in a foreign country, along quiet roads and boarding ferries to cross a fjord was indescribable. Sitting in a fruit stand to have lunch before pedaling to the next town...pure joy.  

I also found peace with merging my professional job + commuting. I don’t have a shower at work, so the struggle with hair + sweat management + outfit selection is real. I embraced the side ponytail to make my new post-helmet hair manageable and slowed my pace to avoid glistening. I tested my “professional” wardrobe and found that most everything was bike-friendliness for the time/distance required for my commute.  Despite my crazy travel schedule, I managed 92 commutes and 331 rather stylish miles by bike, if I do say so!  

If 2017 taught me anything, it’s that a commuter mindset happens in small, every day actions, not just the bold ones. I'm so grateful for my commuter team..this team is comprised of women from all backgrounds...medical, executives, lawyers, nonprofit leaders, small business owners and mathematicians. Despite their full schedules, these ladies stay committed to the bike commuter lifestyles they want to lead and remind me of the possibilities, joy and experiences to be had by bike. It would be very hard to trade in this lifestyle, given the freedom and hours of car-free life I’ve taken back. 

So here's to 2018! I'm ready for the adventures you have in store!