IN THE

On July 16, 1999, Defendant was lawfully operating a bicycle along the right side of the roadway on State Route 49, also known as Salem Avenue, in Trotwood, Ohio. S.R. 49 at this location consists of five lanes, two in each direction and a universal turning lane.

Defendant was ticketed for violating Trotwood Ordinance 333.04, which states in pertinent part as follows:

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

Because it is clear that the Trotwood Ordinance has no application to a lawfully proceeding bicyclist and because the conduct herein did not rise to a level of culpable conduct as defined by the ordinance, Defendant would urge this court to dismiss all charges against him.

PERTINENT OHIO BIKE LAW

Ohio Law clearly permits and accepts bicycles on the roadway. Ohio bicycle operators have a right to use Ohio’s roadways. There is no "ban" of bicycles on state roads. Indeed, in the Ohio Revised Code, bicycles are defined as "vehicles" under O.R.C. 4511.01(G). This definition is a clear statement by the Ohio legislature that bicycles are intended and expected to be woven into the fabric of transportation on Ohio’s roadways.

The legislature has seen fit to pass "special" laws pertaining ONLY to bicycles being operated on the roadway. For example, O.R.C. Section 4511.52 requires bicycles to follow the rules of the road when being operated on the roadway. O.R.C. Section 4511.55 recognizes that not only are bikes are expected and intended to be operated on the roadway, but that bikes, due to their slow speed, are to be operated "...as near to the right side of the roadway as practicable..." Once again, the legislature has accepted that bicycles are part of the fabric of transportation using Ohio’s public roadways and has made an effort to accommodate bicycle operators.

Under O.R.C. Section 4511.55(B) bicycle operators are permitted to ride TWO ABREAST, but no more than two abreast on the roadway. Thus, two bicycles, side by side, are permitted to ride on any public highway in the State of Ohio. Again, the State of Ohio has recognized the right of bicycle operators to use the roadway and has made accommodation in the law for side-by-side riding.

By permitting on-road bicycle operation along the right side of the roadway, the state legislature intelligently recognized the limitations of bicycles. Bicycle operators cannot meet most posted speeds for any extended period of time. The most accomplished riders in the world can barely keep a 30 mph pace for extended periods of time. The typical, reasonably fit adult rider usually goes between 10 - 20 mph while riding on the roadways and while not in a "racing" mode.

Most adult riders never come close to 40 - 45 mph in their entire riding careers. This type of speed requires either a tremendously conditioned professional athlete or a long, steep downhill grade and a strong, well-built bicycle. Requiring bicycle operators to travel "...as near as practicable..." along the right side of the roadway keeps the bicycle operator visible to traffic approaching from front and rear while keeping the slower bicycle out of the direct path of faster traffic.

The use of the word "practicable" connotes an idea of "safety" or "feasibility". What is "practical" or "feasible" for a bicycle operator traveling down a street or roadway depends on a host of factors - the width of the road, the width of the berm, the condition of the road, the condition of the berm, the existence of parked cars, debris, potholes, dogs, children, etc.

Thus, we must conclude that:

In Ohio, bicycle operators are entitled to use the roadways;

In Ohio, bicycles are an expected and anticipated part of the fabric of transportation;

The Ohio legislature recognized the speed limitations of bicycles when adopting the laws favoring bicycle riding on the roadway.

APPLICATION OF LAW TO FACTS HEREIN

The bicycle operator herein is a strong, casual cyclist. He rides hundreds, if not thousands of miles per year. He owns no car. He does all commuting by bicycle. He is truly the type of cyclist the legislature had in mind when adopting the rules discussed herein. The defendant’s experience with traffic is extensive. He knows how to ride properly, safely and legally.

In this case, the defendant was operating his bicycle along the right side of the roadway. The "roadway" herein consists of five lanes of traffic, two in the defendant’s direction of travel, plus a universal turning lane.

The key word of the Trotwood Ordinance is "...traffic..." What is "normal and reasonable traffic?" "Traffic" is defined in the Section 4511.01(TT) of the Ohio Revided Code as follows:

"(TT) "Traffic" means 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 cars and trucks and busses. "Traffic" encompassed the entire fabric of transportation. One portion of "traffic" that is doing the best it can cannot "impede" another. The limitations of vehicles and devices is built in to the law. Things like Amish buggies, "ridden animals" and the like have, like bicycles, speed limitations based on the physics of the machine and operator. Bicycles can’t go 45mph. They are still allowed to be operated on 45mph roadways so long as they follow the special bicycle rules.

Based on the Ohio legislature’s pronouncements, bicycle operators are an intended and expected part of traffic. The law permits such travel and has developed a special place along the roadway where such travel is to be expected. The defendant herein, therefor, was not impeding the "normal and ordinary movement of traffic." Rather, he WAS PART OF the "normal and ordinary movement of traffic." "Traffic’ does not just mean cars and trucks. It means all things that are permitted to use the roadway, including bicycles! The defendant cannot be guilty for doing the best he can do on his bicycle!

The use of the phrase "reduced speed" in the exception to the Trotwood Rule clearly indicates the intention of the Trotwood City Council to have the "impeding traffic" rule apply only to those things which were not going at "full speed," whatever that may be for the particular vehicle or device, or which "stop." An Amish buggy capable of traveling 15 mph, but which travels 4 mph may be guilty of traveling at a "reduced speed" and thus may be cited for impeding traffic. A bicycle operator who stops in the roadway with no particular reason, could be cited and convicted. A bicycle operator traveling at a normal highway speed FOR A BICYCLE, however, is not traveling at at "reduced speed" by any definition and cannot be cited or convicted under this law.

Here, the defendant was operating his bicycle at a reasonable and regular and ordinary speed for a bicycle - not at all at a "reduced speed." There is no evidence that he was operating his bicycle at a "reduced speed." Indeed, it would be virtually impossible to prove that ANY cyclist was operating his bicycle at a "reduced speed." What does this mean - reduced speed. If a cyclist is tired, 10 mph may be the very best he can do. This cannot be a "reduced speed" if it is the best he can do. Without a motor that never tires, bicycles are uniquely dependent on the physical conditioning of the rider, the strength and direction of the prevailing winds, the number of potholes, broken bottles and other debris along the roadway and a host of other factors! Here, there is no evidence of "reduced speed." Rather, the only evidence was that the cyclist was traveling at a reasonable speed for a bicycle operator under the prevailing conditions.

TRAFFIC NOT "IMPEDED" BY DEFENDANT’S CONDUCT

The word "impede" is defined to mean "...to stop in progress; to obstruct..." Webster’s New Twentieth Dictionary Unabridged, at 912.

The evidence herein was that the defendant was operating his bicycle along the right side of a 5 lane highway. There were two lanes of travel in his direction, plus a universal turn lane into which traffic could safely proceed, if necessary. The defendant’s operation of his bicycle in no way impeded the flow of traffic. There were two lanes around him. Further, one could pass him safely by barely leaving the right hand lane.

CONCLUSION

The defendant herein is not guilty of "impeding traffic." He IS traffic. This law cannot be read as permitting police to remove bicycle operators from the streets who are lawfully utilizing their bicycles as transportation devices.

This case, and this issue, are extremely important to local cyclists. It has been discussed extensively by the Dayton Cycling Club, on various bicycle-planning internet sites and elsewhere throughout Southern Ohio and United States! Bicyclists fought, over 100 years ago, to get legislatures to pave the roadways of our state so that the old "big wheelers" could safely ride. Bikes were utilizing the roadways of Ohio before cars, trucks, busses and other motorized traffic. The state has recognized the existence and importance of bicycle operators in State law. The defendant herein was simply doing what he had done many, many times in the past - riding lawfully down State Route 49.

The defendant herein is not guilty of criminal conduct. These charges must be dismissed.

Respectfully submitted,

______________________________

Steven M. Magas [0009131]

Bison Jacobson Law Office

3536 Edwards Road, Suite 201

Cincinnati, OH 45202

513.533.3030