Legally Speaking – with Bob Mionske: Points is Points
By Bob Mionske
I always enjoy reading your column. Lately though, I haven’t seen your column, which has been kind of disappointing for me. Where have you been? Are you still writing your column? I hope so.Anyway, last weekend, I had the pleasant surprise of seeing you speak at the Seattle Bike Expo. During your talk, you mentioned something about traffic citations while riding your bike counting against your driver’s license. Can you explain more about this? I find it hard to believe that I could lose my driver’s license for something I do while riding my bike.
Seattle, WashingtonDear D.R.,
Thanks for asking about me, and glad you were able to make it to my talk. First, in case you missed it at my talk, I’ll let you (and everybody else) in on a little secret about what I’ve been up to lately, because I have been away for a while, working on a project that I’m very excited about, and that I hope my readers will find equally exciting.
Not only am I still writing my column, I’ve also been writing my first book, on bicycle law, naturally. The book, titled Bicycling & The Law: Your Rights As A Cyclist, will be published by VeloPress, and will be available in bookstores and bike shops across the country on June 28. In fact, if you go to VeloGear.com right now, buy the book and, during checkout use the code “ESBELAW” and you will receive a 20-percent discount on the price, but only if you pre-order by March 18.
I know it’s my book, so I’m supposed to be a bit biased, but I think if you enjoy reading my column, you’re really going to love this book. It was written as a guide to your legal rights, and in addition to the legal issues I write about in Legally Speaking, it focuses on two areas I’m particularly interested in—your legal rights to the road, and cyclist harassment. Overall, my book will inform you on what your rights are, and what steps to take if you do encounter a legal problem. Most importantly, it will provide you with the knowledge to avoid many legal problems in the first place.
For those readers who missed me in Seattle, you may still have a chance to catch me, because Seattle was only the first of what will be many talks on bicycle law I plan to give in the coming year—maybe at a bookstore or bike shop near you.
Now, on to your bike law question. You know, I find it hard to believe too, but yes, in some states, your driving privileges can be affected if you get a ticket while riding your bike.
In nearly every state, most violations of the traffic code are not a criminal offense. This means that in these states, a traffic offense which only carries a penalty of a fine, and no jail time, is considered a “violation,” or an “infraction.” In contrast, a traffic offense which carries a penalty of jail time is a criminal offense. In addition to the fine or jail penalty, however, many states also count convictions for serious offenses against your driving record. Let’s compare three states to see how this works. We’ll begin with your state, Washington, first, and then we’ll compare it with Oregon and California.
In Washington, “points” are applied against your driver’s license under the guidelines of the Washington Habitual Traffic Offenders Act. Under this Act, the state legislature has declared that it is the policy of the state
To provide maximum safety for all persons who travel or otherwise use the public highways of this state; andTo deny the privilege of operating motor vehicles on such highways to persons who by their conduct and record have demonstrated their indifference for the safety and welfare of others and their disrespect for the laws of the state, the orders of her courts and the statutorily required acts of her administrative agencies; andTo discourage repetition of criminal acts by individuals against the peace and dignity of the state and her political subdivisions and to impose increased and added deprivation of the privilege to operate motor vehicles upon habitual offenders who have been convicted repeatedly of violations of traffic laws.
If you think about what the legislature is saying, you can perhaps see why your driver’s license is affected by offenses committed while riding your bike. Of course, what the state is concerned with here are serious offenses by “habitual offenders.” Under the Habitual Traffic Offenders Act, a “habitual offender”—that is, a person whose driver’s license is subject to revocation—is a person who is convicted of three or more serious offenses within a five-year period. Some of those offenses, such as DUI, do not apply to cyclists in Washington, although as we’ll see, they may apply in other states. Other serious offenses, however, do apply to cyclists in Washington. Under RCW 46.65.020, the following offenses will be counted as points against your driver’s license, even if the offense is committed while riding your bike:
Vehicular assault as defined in RCW 46.61.522Failure of the driver of any vehicle involved in an accident resulting in the injury or death of any person or damage to any vehicle which is driven or attended by any person to immediately stop and remain at the scene until the required information is provided.Reckless driving as defined in RCW 46.61.500
If you commit three or more of these offenses within a five-year period, you can lose your driver’s license, even if the offense is committed while riding your bike. But putting it in perspective, you’d have to be a really dangerous cyclist—the kind of person described by the legislature as someone whose “conduct and record have demonstrated their indifference for the safety and welfare of others and their disrespect for the laws of the state”—in order to lose your license. You’d have to be the kind of rider who flees the scene of an accident, or who recklessly endangers others while riding, or who intentionally assaults others with your bicycle. In other words, you would not be the kind of cyclist who reads Legally Speaking.
Okay, so I think it’s safe to say you won’t be losing your license in Washington. How do they do things in other states? Let’s look at Oregon next.
In Oregon, the Habitual Offender Program, established under Section 809.600 of the Oregon Vehicle Code, keeps track of convictions. As in Washington, the goal is the same—to revoke the driving privileges of habitual offenders—and the program operates in much the same way as in Washington. Under this program, a person’s driving privileges will be revoked if that person has been convicted of 3 or more of the serious listed offenses within a five-year period, or 20 or more of other listed offenses within a five-year period.
In Oregon, the serious listed offenses are:
Riding while under the influence of intoxicants under ORS 813.010;Reckless driving under ORS 811.140;Failure to perform the duties of a driver under ORS 811.700 or 811.705
If you are convicted of three or more of these serious offenses within a five-year period, you will lose your license, even if the offense was committed while riding your bike. If you’ll notice, one of the listed offenses is not listed in the Washington program—riding while under the influence of intoxicants. This is because riding under the influence of intoxicants is a traffic offense in Oregon (in fact, it’s exactly the same offense as a DUI in a motor vehicle, and is treated exactly the same), while it is not an offense in Washington. Now, in Oregon, you can also lose your license if you’re convicted of twenty or more of the following offenses within a five-year period:
Riding while under the influence of intoxicants under ORS 813.010;Reckless driving under ORS 811.140Failure to perform the duties of a driver under ORS 811.700 or 811.705.Any violation of a traffic ordinance of a city that substantially conforms to state traffic rules.Any violation of federal law or the laws of another state that substantially conforms to state traffic rules.
What the state means is that if you have one or two convictions for a serious offense, and eighteen or nineteen convictions for the minor listed offenses—or if you have twenty minor convictions—you’ll lose your license.
So far, we’ve seen that certain serious offenses, if repeated too frequently, will cost you your driver’s license in both Washington and Oregon, although the serious offenses differ depending on the state. In Washington, for example, vehicular assault will count against your license, but riding under the influence of intoxicants won’t. In Oregon, on the other hand, riding under the influence of intoxicants will count against your driver’s license, but vehicular assault won’t.
Now let’s take a look at one more state—California—to see how they handle habitual offenders.
In California, convictions that count as “points” against your driver’s license are identified in Section 12810 of the Vehicle Code. In the next Section, 12810.5, the Vehicle Code mandates that
Any person whose driving record shows a violation point count of four or more points in 12 months, six or more points in 24 months, or eight or more points in 36 months shall be prima facie presumed to be a negligent operator of a motor vehicle.
A prima facie presumption means that the Department of Motor Vehicles will presume you are a negligent operator unless you present evidence to the contrary. If you are presumed to be a negligent operator, the Department of Motor Vehicles will suspend or revoke your driving privilege.
Some of the violations under Section 12810 clearly do not apply to bicycles. However, some of the violations do apply; in California, the following violations will result in two points being applied against your license:
§ 20001. Duty to stop at scene of injury accident. Under this statute, you are required to stop and provide the required information whenever you are involved in an accident resulting in injury to any person other than yourself.§ 20002. Duty where property damaged. Under this statute, you are required to provide the required information to the owner of any property damaged in a collision in which you are involved.§ 21651. Divided Highways. Under this statute, you are prohibited from riding against traffic on a divided highway.§ 23103. Reckless driving. Under this statute, you are prohibited from riding your bike “in willful or wanton disregard for the safety of persons or property.”§ 23140. Persons under 21 years of age. Under this statute, it is illegal for persons under the age of 21 to ride with a blood alcohol content of .05 percent or higher.§ 23153. Driving under the influence and causing bodily injury to another person. Under this statute, it is unlawful for any person who is riding under the influence of any alcoholic beverage or drug, to injure another person as a result of violating any law while riding under the influence.
Furthermore, one point will be applied against your license if you are involved in any accident for which the DMV deems you to be responsible.
As you can see, the list of offenses which count against your California license varies somewhat from those in both Washington and Oregon. As in both Washington and Oregon, in California it will count against your license if you fail to stop and provide the required information when you are involved in an accident. Also, as in Washington, it will count against your license if you recklessly endanger others while riding. And although generally riding under the influence of intoxicants won’t count against your license in California, as it does in Oregon, if you’re a minor, or if you injure somebody as a result of riding under the influence, it will count against your California driver’s license. Finally, if you’re on a divided highway—a highway divided by two or more feet of curb or other markings—and riding against traffic, that will count against your license.
Although these laws seem counter-intuitive—how can you lose your driver’s license for doing something that doesn’t require a driver’s license in the first place?—the states have decided that they want to restrict the driving privileges of those whose “conduct and record,” as the Washington legislature put it, “have demonstrated their indifference for the safety and welfare of others and their disrespect for the laws of the state.”
So ride safe out there, and hope to see more of my readers in the coming year.
Bob(Research and drafting provided by Rick Bernardi-law student- Lewis and Clark)
Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad race.After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).If you have a cycling-related legal question, please send it to firstname.lastname@example.orgBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-accident advice can be found at www.bicyclelaw.com.Important notice:
The information provided in the “Legally speaking”column is not legal advice. The information provided on this publicweb site is provided solely for the general interest of the visitors tothis web site. The information contained in the column applies to generalprinciples of American jurisprudence and may not reflect current legaldevelopments or statutory changes in the various jurisdictions and thereforeshould not be relied upon or interpreted as legal advice. Understand thatreading the information contained in this column does not mean youhave established an attorney-client relationship with attorney Bob Mionske.Readers of this column should not act upon any information contained inthe web site without first seeking the advice of legal counsel.