IN THE

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY, OHIO

CASE NO. CA 18207

CITY OF TROTWOOD

APPELLEE

STEVEN O. SELZ

APPELLANT

APPELLANT’S BRIEF

Respectfully submitted by,

Steven M. Magas [0009131]

Appellant’s Trial Counsel

Bison Jacobson Law Office

3536 Edwards Road, Suite 201

Cincinnati, OH 45208

513.533.3030

513.533.3037 – fax

BikeLawyer@aol.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

I. PROCEDURAL POSTURE 1

II. STATEMENT OF FACTS 1 – 5

III. ARGUMENT -- FIRST ASSIGNMENT OF ERROR 6-17

THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT A BICYCLE OPERATOR CAN BE CONVICTED OF “IMPEDING TRAFFIC” UNDER AN ORDINANCE PROHIBITING A VEHICLE OPERATOR FROM “IMPEDING THE NORMAL AND REASONABLE MOVEMENT OF TRAFFIC” WHERE THE BICYCLE OPERATOR IS TRAVELING AT A NORMAL AND REASONABLE SPEED FOR A BICYCLE RIDER, WHERE THE BICYCLE OPERATOR IS NOT STOPPED OR TRAVELING AT A “REDUCED SPEED” FOR A REASONABLE BICYCLE OPERATOR, AND WHERE TRAVELING AT THE SLOWER SPEED IS “NECESSARY FOR SAFE OPERATION OR TO COMPLY WITH LAW.”

1. STANDARD OF REVIEW 6

State of Ohio v. Jenks (1991), 61 Ohio St.3d 259

2. HISTORY OF BICYCLE OPERATION ON ROADWAYS 6 - 8

· A Social History of the Bicycle, Smith, Robert A., 1972,

American Heritage Press 7

· “The History of The L.A.W.,” Bicycle USA, December 1989 7

3. OHIO’S BIKE LAWS 8 - 10

· O.R.C. §4511.01(A) 8

· O.R.C. §4511.52 8

· O.R.C. §4511.55 8

· O.R.C. §4511.55(B) 8

· O.R.C. §4511.54 9

· O.R.C. §4511.56 9

· O.R.C. 4511.53 9

4. CITY OF TROTWOOD ORDINANCE 333.04(a) 10 – 16

· TROTWOOD MUNICIPAL CODE §333.04(a) 10

· O.R.C. §4511.01(TT) 11

· Black’s Law Dictionary, 5^th Ed., 1003 13

5. CONCLUSION 16

STATEMENT OF THE CASE

I. PROCEDURAL POSTURE

Defendant/Appellant Steven O. Selz was issued a traffic citation by a City of Trotwood, Ohio, officer on July 16, 1999, for violating a local ordinance banning “impeding traffic.” T.d. 1. After entering a plea of not guilty, Mr. Selz was brought to trial on February 7, 2000. Judge Connie Price found Mr. Selz guilty on February 7, 2000, ordering a $100.00 fine and costs. T.d. 12. This court’s jurisdiction was invoked by the timely filing of a Notice of Appeal on March 3, 2000. T.d. 13.

II. STATEMENT OF FACTS

Steven O. Selz was riding a bicycle on State Route 49, also known as Salem Avenue, in the City of Trotwood on July 16, 2000. T.p., 5 -7. State Route 49, in the vicinity of the alleged infraction, consists of five lanes — two in each direction and a universal turning lane. T.p., 15. The speed limit is 45 miles per hour. T.p., 8.

According to Officer Vance, when she:

“…looked up Salem, Mr. Selz was driving in the middle of the traffic lane causing cars to stop and have to go over to the other lane to get around him.”

Mr. Selz was driving a bicycle. T.p., 8. Officer Vance estimated Mr. Selz speed at “no more than 15 miles per hour.” T.p., 10. Officer Vance issued a citation to Appellant under the “impeding traffic” ordinance of the City of Trotwood Municipal Code.^[1] The SOLE reason for issuing the citation was “...his slow speed...” T.p., 9.

Over a defense objection, the court allowed testimony the Officer to opine that she:

“...felt that it could cause a traffic accident where it would injure him or someone in a motor vehicle because we’ve even had accidents because of that, bicycles causing traffic accidents in that area.”

This testimony is absolutely irrelevant to the issue of whether Appellant was “impeding traffic” and was presumably ignored by the Trial Court in arriving at its decision.

On cross examination, Officer Vance admitted that there was no posted minimum speed on Salem Avenue at the point of the alleged infraction. T.p., 13. Critically, Officer Vance admitted that Appellant was “...riding at a reasonably normal bicycling speed...” T.p., 16.

Officer Vance clearly did NOT understand Ohio law as to bicycling, indicating that the law provided “...X amount of feet you’re allowed to ride from the curb...” claiming that Mr. Selz was “...clearly in the middle of the roadway...” T.p., 15. In fact the law requires a bicycle operator to ride “...as near to the right side of the roadway as practicable..”^[2] while allowing bicycle operators to “...ride no more than two abreast...”^[3] There is no defined “zone” for bicycles. The word “practicable” means “feasible in the circumstances.” Black’s Law Dictionary, 5^th Ed., 1055. With regard to operating a bicycle, “practicable” must be viewed as meaning, safely, reasonably and appropriately. The legislature would not require a cyclist to operate his bicycle in any other fashion!

Over a defense objection, the court allowed Officer Vance to testify about a prior “warning” which she had given to Appellant. Other than provide Officer Vance with a motive to target Appellant on the day in question, this testimony clearly lacks relevance.

Appellant took the stand and testified that he is truly a “transportation cyclist.” For the past twenty-eight years he has either used public transportation or his bicycle to get around. T.p., 20. He rides between 3500 - 5500 miles per YEAR on his bicycle, some 95% of which occur on the roadways. T.p., 20. Appellant commutes by bicycle. T.p., 20. Appellant feels comfortable riding in light, medium or heavy traffic. T.p., 20 - 21.

Mr. Allen Byrum was proffered as an expert witness. The City of Trotwood stipulated [T.p., 30] to Mr. Byrum’s expert testimony that:

Ø Appellant was operating his bicycle in a reasonable fashion and in a competent fashion for a bicyclist traveling on Salem Avenue at that point in time;

Ø Appellant was traveling at a reasonable speed for a bicycle operator;

Ø 45 miles per hour is “...not only an unreasonable speed for a bicycle, it’s an unsafe speed for bicycles...”

III. ARGUMENT – FIRST ASSIGNMENT OF ERROR

1. STANDARD OF REVIEW

The standard of review was set forth in State of Ohio v. Jenks (1991), 61 Ohio St.3d 259, paragraph 2 of the syllabus, as follows:

“An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.”

The vagueness and ambiguity built into the law in question make it impossible to convict Appellant of “impeding traffic” based on the facts of this case.

2. THE HISTORY OF BICYCLE OPERATION ON ROADWAYS

Bicycle operators played a critical role in the betterment of the nation’s highway system. In Chapter 11 of A Social History of the Bicycle ^[4] author Robert Smith discusses this role. During the time of the first great rise in popularity of bicycle riding, the roads were, as Smith describes:

“Wholly unclassable

Almost impassable

Scarcely Jackassable” Id., at 208.

Charles Dickens, during a trip through Ohio, described the a trip along Ohio’s roads as including a wild, rough ride that ended up with one side of the coach “…down deep in the mire, and we were holding onto the other…” Id.

The League of American Wheelman, a nationwide bicycle advocacy group still active today, took up the call for better roads in the early 1880’s. Id. By 1897, a million L.A.W. members fought for better roads for more efficient, and fun, bicycle operation. “Good Roads” magazine was founded by the L.A.W. and the “Gospel of Good Roads” was preached by L.A.W. leaders far and wide. Id.; See, also, “The History of the L.A.W.,” Bicycle USA, December 1989. Roadway projects were introduced, and funded, locally and nationally in large part due to the unfaltering effort of early bicycle advocates!

Once bicycles were defined as “vehicles,” as under Ohio law, a bicycle operator’s right to use the roadways was thought to be secure.

3. OHIO’S “BIKE LAWS”

The State of Ohio has promulgated several “bicycling” statutes and laws including:

Ø “Bicycles” are considered “vehicles” for statutory purposes.^[5] Indeed, the very definition of bicycles requires that it be a device which may transport people or goods “...upon a highway...” A bicycle operator’s right to use Ohio’s roadways is clear from the inclusion of bicycles as “vehicles.”

Ø Bicycles may be ridden on Ohio’s roadways, but must follow the rules of the road.^[6]

Ø Bicycles may be operated on the roadways, but must be ridden “as near to the right as practicable^[7].”

Ø Two bicycles may be operated side by side in a single lane.^[8]

Ø Bicycles are clearly intended and encouraged by the legislature to have access to Ohio’s roadways and are forbidden from certain practices while riding on the roadway.^[9]

Ø Riders on the roadway must meet certain equipment specifications which do not apply to those who are not operating their bicycles on the roadway.^[10] No rearview mirror is required!

Ø The State of Ohio has a state bicycle coordinator, a “Share The Road” program aimed at educating drivers in sharing the road with bicycles, a state sponsored “Bicycle Education” program and has enhanced it bicycling programs in recent years in light of ISTEA, the federal highway spending program that mandates certain “bike friendly” activities in order to get federal monies.

Clearly, it cannot be seriously disputed that bicycling is encouraged by the State of Ohio and State Legislature and that bicycle operators have a RIGHT to use Ohio’s roadways and a RIGHT to expect some accommodation stemming from physical limitations inherent in the vehicle! Local police authorities cannot simply unilaterally take on “parens patrie” duties out of some vague opinion that operating a bicycle in a particular neighborhood is bad, or dangerous or crazy! Here, the appellant/cyclist was at home in traffic, was riding appropriately and had every right to use the roadway in question. Appellant cannot be BANNED from the road because he was going slow for the Officer’s sensibilities. It is undisputed that he was traveling as fast as he could and traveling at a reasonable speed for a bicyclist!

4. CITY OF TROTWOOD ORDINANCE 333.04(a)

The pertinent portion of Section 333.04(a) of the Trotwood Municipal Code states that

“No person shall stop or operate a vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with law.”

A. WHAT IS “TRAFFIC?”

The vague and ambiguous ordinance in question has some interesting language. Clearly, “traffic” is the key word in the ordinance. The “normal and reasonable flow of traffic...” is not allowed to be impeded by vehicles that are stopped or traveling at a “reduced speed.” [Emphasis added.]

What is “traffic?” Traffic is defined at O.R.C. Section 4511.01(TT) to include “...pedestrians, ridden or herded animals, vehicles, streetcars, trackless trolleys, and other devices, either singly or together, while using any highway for purposes of travel...”

Thus, “traffic” is more than simply cars and busses and trucks. “Traffic” encompasses an entire FABRIC of transportation. Bicycle operators are one thread of the transportation fabric. Indeed, bicycle operators are in the PROTECTED CLASS. They are among those whose “reasonable and normal movement” is not to be impeded under the ordinance.

B. WHAT IS THE “REASONABLE AND NORMAL MOVEMENT OF TRAFFIC?”

What is the “reasonable or normal movement of traffic?” Since “traffic,” by definition, includes bicycle operators, the “reasonable and normal movement of traffic” includes the “normal and reasonable movement” of bicycle operators as well as cars, busses, trucks and other “vehicles”. “Traffic” does not move at a uniform speed. Not all “traffic” can reach speeds of 45 miles per hour. The law clearly permits things that cannot reach 45 miles per hour to use the roadway —e.g., pedestrians, bicycles, Amish buggies and horses.

C. APPELLANT WAS PART OF THE “REASONABLE AND NORMAL MOVEMENT OF TRAFFIC” AND CANNOT BE CONVICTED OF VIOLATING THE TROTWOOD ORDINANCE

The undisputed facts clearly indicate no criminal conduct. Appellant was first in line at a light. He started off uphill and some cars had to either go around him or run him over. Appellant’s conduct was not criminal -- it is just the laws of nature at work. Bicycles do not go 45 miles per hour. An operator, even the most fit Tour de France racer, cannot go from a standing stop to 45 miles per hour, uphill, in a few seconds.

As Officer Vance admitted, there is no minimum speed on Salem Avenue. The only rationale for criminal behavior we are left with is the arresting Officer’s gut reaction that 15 miles per hour was too slow for a bicycle operator pedaling as hard as he could go uphill! Would the same rationale apply to an Amish buggy? A fully loaded dump truck?

Further, the stipulated testimony from Appellant’s expert, as well as our own common sense, tell us that operating a bicycle at 45 miles per hour on a busy street would be suicidal. Stopping is difficult, turning impossible. Bikes cannot be banned from every roadway in which the operator is unable to reach the speed limit. The prosecution further stipulated to Appellant’s expert’s testimony that Appellant was proceeding as a lawful bicycle operator – i.e., his position on the roadway, speed, and bicycle operation was appropriate.

Finally, the prosecution’s aim is clear from closing argument. If a cyclist cannot go 45 miles per hour on a five lane road, then, “I mean, you get off the roadway…” T.p., 38. This local ordinance is being used as a bike ban – keeping legitimate, law-abiding bicycle operators from using one of the main roads in the area for transportation purposes. This is precisely what bicycle operators have been fighting for almost 150 years.

Unfortunately, the court’s rationale is also apparent from the record, T.p., 40.

“…I certainly understand the impassioned defense on this case because I do believe that bicyclists need a place to ride and it is not safe a lot of times to ride it on the streets on 49. I don’t think I’d ride there at 2:00 am, just because of the traffic. I don’t think it’s safe.” [Emphasis added.]

Again, this is precisely the sort of parens patriae^[11] approach that caused cyclists to fight for being included as “vehicle operators” under state law. With all due respect to the court’s opinion, it really does not matter whether the court, the prosecutor or the arresting officer “feels” it is safe. The legislature has already determined that cyclists have the right to use the roadways.

Mr. Selz clearly “felt” safe. He testified that some 95% of his riding is done on the roadway and that he is frequently on this particular road. He is very comfortable in traffic. He needs to use the road to get from Point A to Point B and was very comfortable traveling along State Route 49 on his bicycle to do so. He should not be convicted of a misdemeanor because the police officer, the judge or the prosecutor do not share his comfort level of on-road bicycle operation.

D. APPELLANT WAS NOT OPERATING HIS BICYCLE AT A “REDUCED SPEED”

The Ordinance clearly contemplates two criminal acts -- stopping or driving at a “reduced speed.”

It is undisputed that Appellant was moving. Further, Appellant was clearly NOT operating his vehicle at a “reduced speed.” It is undisputed by Officer Vance that Appellant was operating his bicycle at a reasonable and normal bicycling speed. T.p., 16., not at a “reduced speed.” Appellant and the Officer virtually agreed that his speed was about 15 miles per hour. Appellant’s testimony that this was as fast as he could physically go was not challenged.

Accordingly, Appellant cannot be cited and convicted under this ordinance since he was not traveling at a “reduced speed” but at a “normal and reasonable” speed for a bicycle operator.

E. APPELLANT’S SPEED WAS NECESSARY FOR SAFE OPERATION

The only testimony in the record is that Appellant’s speed of approximately 15 miles per hour was the sole reason for the conviction. T.p., 6. However, even if the court believes Appellantn was traveling at a “reduced speed” so as to justify inclusion in the “impeding traffic” ordinance, it is undisputed that such a speed was “necessary for safe operation” of Defendant’s bicycle.

Appellant’s expert’s testimony was that 45 miles per hour is an unsafe speed for a bicycle. Few bicycle operators ever even get close to 45 miles per hour. Had Appellant been traveling down State Route 49 at 45 miles per hour, he would have totally unable to control his bicycle in a safe manner. There is no physical way to bring bicycle and operator to a safe stop on a main road at 45 miles per hour.

The speed at which Appellant was traveling at the time of the alleged infraction was a speed necessary for the safe and proper handling of his bicycle. He cannot be convicted under the statute because he was in compliance with the law.

CONCLUSION

Through the magic of the Internet , this case has been the subject of concern and commentary by cyclists all over the world. The Village of Trotwood has certainly received its share of email from concerned cyclists.

If a municipality can be permitted to take the position that bicycle operation can be banned from any road on which the bicycle operator cannot meet the posted speed limit then the cyclist’s right to use the road means nothing.

The facts here are clear – virtually undisputed. Appellant’s conduct was reasonable and normal. The “reasonable and normal movement of traffic” by definition INCLUDES bicycle operators. Bicycle operators have a right to use the road and the law has accommodated their special physical limitations.

Here, there were five lanes of travel and a cyclist using the roadways exactly as the legislature intended – a true transportation cyclist. He should not be banned from the road just because the prosecutor or the judge does not feel “safe” riding where he is extremely comfortable riding. Appellant did nothing wrong. He did not violate the “impeding traffic” ordinance and his conviction under this ordinance should be overturned as a matter of law.

BikeLawyer@aol.com

CERTIFICATE OF SERVICE

A copy of this brief was served on all parties of record this _____ day of May, 2000, via facsimile transmission and regular U.S. Mail.

^[1]Section 333.04(a) of the Trotwood Municipal Code states that “No person shall stop or operate a vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with law.”

^[2]O.R.C. Section 4511.55.

^[3]O.R.C. Section 4511.55(B).

^[4] Smith, Robert A., A Social History of the Bicycle, 1972, American Heritage Press.

^[5]4511.01 DEFINITIONS

As used in this chapter and in Chapter 4513. of the Revised Code:

(A) "Vehicle" means every device, including a motorized bicycle, in, upon, or by which any person or property may be transported or drawn upon a highway, except motorized wheelchairs, devices moved by power collected from overhead electric trolley wires, or used exclusively upon stationary rails or tracks, and devices other than bicycles moved by human power.

^[6]4511.52 BICYCLES

Sections 4511.01 to 4511.78, inclusive, 4511.99, and 4513.01 to 4513.37, inclusive, of the Revised Code which are applicable to bicycles apply whenever a bicycle is operated upon any highway or upon any path set aside for the exclusive use of bicycles.

^[7]4511.55

^[8]4511.55 PLACE AND MANNER OF OPERATING BICYCLES; RIDING BICYCLES AND MOTORCYCLES ABREAST

(B) Persons riding bicycles or motorcycles upon a roadway shall ride not more than two abreast in a single lane, except on paths or parts of roadways set aside for the exclusive use of bicycles or motorcycles.

^[9]4511.54 PROHIBITION AGAINST ATTACHING BICYCLES AND SLEDS TO VEHICLES

No person riding upon any bicycle, coaster, roller skates, sled, or toy vehicle shall attach the same or himself to any streetcar, trackless trolley, or vehicle upon a roadway.

^[10]4511.56 EQUIPMENT OF BICYCLES

(A) Every bicycle when in use at the times specified in section 4513.03 of the Revised Code, shall be equipped with the following:

(1) A lamp on the front that shall emit a white light visible from a distance of at least five hundred feet to the front;

(2) A red reflector on the rear of a type approved by the director of public safety that shall be visible from all distances from one hundred feet to six hundred feet to the rear when directly in front of lawful lower beams of head lamps on a motor vehicle;

(3) A lamp emitting a red light visible from a distance of five hundred feet to the rear shall be used in addition to the red reflector;

(4) An essentially colorless reflector on the front of a type approved by the director;

(5) Either with tires with retroreflective sidewalls or with an essentially colorless or amber reflector mounted on the spokes of the front wheel and an essentially colorless or red reflector mounted on the spokes of the rear wheel. Each reflector shall be visible on each side of the wheel from a distance of six hundred feet when directly in front of lawful lower beams of head lamps on a motor vehicle. Retroreflective tires or reflectors shall be of a type approved by the director.

(B) No person shall operate a bicycle unless it is equipped with a bell or other device capable of giving a signal audible for a distance of at least one hundred feet, except that a bicycle shall not be equipped with nor shall any person use upon a bicycle any siren or whistle.

4511.53 RULES FOR BICYCLES, MOTORCYCLES AND SNOWMOBILES

For purposes of this section, "snowmobile" has the same meaning as given that term in section 4519.01 of the Revised Code.

A person operating a bicycle or motorcycle shall not ride other than upon the permanent and regular seat attached thereto, nor carry any other person upon such bicycle or motorcycle other than upon a firmly attached and regular seat thereon, nor shall any person ride upon a bicycle or motorcycle other than upon such a firmly attached and regular seat.

[11] Curiously, Parens patriae originates from the English common law where the King had a royal prerogative to act as guardian to persons with legal disabilities such as infants, idiots and lunacy. Black’s Law Dictionary, 5^th Ed., 1003. It is submitted that this “prerogative” does not exist today to give police officers the authority to ban legal behavior they feel contains some element of danger.

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STATEMENT OF THE CASE

E. APPELLANT’S SPEED WAS NECESSARY FOR SAFE OPERATION

CONCLUSION

BikeLawyer@aol.com

CERTIFICATE OF SERVICE