Three Feet to Pass — Why Such Resistance?

With the final blow delivered by a House transportation sub-committee to Senate Bill 566 this morning, the 2010 legislative session has effectively ended, sending Virginia’s cyclists home empty handed. In leading a statewide effort, the Virginia Bicycling Federation tried unsuccessfully to accomplish three objectives:

  • Change the existing passing distance between a car and a bike from 2 to 3 feet.
  • Change the existing “following too closely” law from applying to a motor vehicle following another motor vehicle to include motor vehicles following bicycles.
  • Adoption of a “careless driving” law similar to several other states that required motor vehicle operators to exercise “due care and regard” for other roadway users. Note: this provision was withdrawn before it even got started when it became clear that it didn’t stand a chance.

These changes were spurred by a desire to bring state code in line with contemporary safe separation practices. In addition, we had hoped to make some progress in addressing incidents in recent years where Virginia’s criminal justice system turned its back on us. If you think that running over a bicyclist or pedestrian is illegal in Virginia, think again. The above legislation would not have totally fixed this, but the changes would have helped.

The 3 feet overtaking provision in SB566 was passed by the state Senate in an uncontested 40-0 vote. We are grateful to our Senators and staff members for this, as well as to those who supported us in the house when HB1048 came along. Delegate Jeion Ward of Hampton provided a wonderful take on this bill as a grandmother. Additionally, we appreciate the support shown by our two most populous jurisdictions in the state for their support, Fairfax County and City of Virginia Beach.

How could things fall apart with such simple pieces of legislation? I attended most of the hearings and watched the floor debate for HB1048. Here are some of the objections raised, with my response to each:

“Bicyclists are often law breakers, unworthy of any added protection under the law.”

Don’t many drivers fit this category too? Yet they receive protection.

“Bicyclists are inconsiderate when they delay drivers from getting to their destinations, especially in narrow lanes or roads.”

Drivers delay other drivers too. To get on a major arterial near my house in a car, I am often am the only vehicle tripping the traffic signal. This stops upwards of 20-30 cars for 30 seconds or longer. Everyone waits patiently while I get on the highway, then we all travel together about a half mile or so down the road where the process repeats itself. No one honks, screams obscenities, or throws things at me. Yet bicyclists often receive harsh treatment for allegedly impeding a single motorist by far less. This same heat and intimidation was evident in each of the hearings I attended.

The public roads are just that — public, available on a first come, first served principle.

“A 3 ft. passing rule would inconvenience and hazard motorists by requiring them to move into the adjacent or oncoming travel lanes.”

As any experienced cyclist will tell you, this is already a frequent case under the existing law. The new law would have had little to no impact on the vast majority of drivers who pass us safely already. It’s the ones who don’t understand what a safe passing distance is that we are most concerned with. In addition 3 feet accounts for the typical wobble of many cyclists and children, and helps to prevent crashes where a cyclist gets startled and loses control. In short, the changes were not totally about the spandex mafia, though that’s how the legislation was portrayed by opponents.

“Bicyclists should police themselves before coming in asking for added legal protections.”

“Policing ourselves” clean before any headway can be made in bike safety legislation is an impossible standard to meet. It’s unfair too — we don’t ask drivers to police other drivers. Can you imagine AAA warning and cajoling red light runners and speeders? Yet that is what we are being asked. If people are breaking the law to the extent that it is a concern, it should be up to the police to enforce those laws.

Those were the main arguments against. If you are thinking, “Where’s the beef?” you are not alone.

In a truth is stranger than fiction move, the vote in the full House was almost entirely along party lines with Republicans lining up against and Democrats totally for. Is bicycling really a partisan issue? Things certainly didn’t start out that way. The proposed changes were initiated by a Republican and championed by others, and the bills were patroned by two Dems from N. Virginia. Yet things ended in the House along party lines. The Capital Hill rumor mill has it that the Republican Caucus considered HB1048 enough of a threat to go after it. Have Republicans become that unfriendly toward bikes and bike safety? I’m pretty much down the middle, so I’m asking this rhetorically, not sarcastically.

The treatment of this bill in the House and the rationales offered for defeating it have irked a number of Republican donors who bike. It appears there are at least a few legislators who owe the bikers that support them the benefit of a sound understanding of our concerns and a viable suggestion or two on how we can move forward on this next year.

VBF went into this thinking that our proposed changes were pretty straightforward and supportable. While we expected some difficulty, we did not expect to be roughed up for the reasons stated. But persistence pays, and we’ll be back next year. In the meantime, please get to know your legislators. More importantly, get them to know you as a skilled, responsible, and law abiding cyclist.

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40 comments… add one

  • Well said, Bruce.

  • Certainly, a sad day for Virginia cyclists. I commend the Virginia Senate and the House leaders who tried to do the right thing for Virginia cyclists. And although small minds have won this battle, the war must go on until the goal is achieved.

    While you debrief and regroup may I suggest that the Federation undertake a ground-up approach where you seek and secure the support from cities and counties like Fairfax County and City of Virginia Beach in creating ordinances that call for “3 Feet Clearance” when passing cyclists. Texas cyclists suffered a similar defeat last year when the Governor vetoed a bill that had the unanimous support of their legislature. They immediately went to work on getting cities to adopt ordinances, and they have been successful.

    Don’t let this defeat hold you back from securing this protected space for VA cyclists and saving lives. I know I am preaching to the choir, but keep these things in mind. An ordinance that requires motorists to give cyclists 3 feet clearance when passing from the rear gives motorists a concrete reference to what is and what is not a safe passing distance. Cyclists gain the comfort of knowing they have a certain amount of space that is protected…no vagueness, “3 Feet”, pretty clear for everyone. And this enhanced level of comfort and understanding may inspire others to saddle-up and give the sport a try…which will make cycling even safer as a result of more cyclists on the road.

    Also, keep in mind that the most immediate value of an ordinance is to serve as a tool to help educate motorists about the need and method for giving cyclists 3 feet space when passing. And the important point here is motorists will learn that if they cannot give a cyclist 3 feet clearance (oncoming traffic), then they must wait until they can.

    Finally, taking a ground-up “ordinance” approach will place you closer to the whole enforcement issue. Energetic and dedicated local law enforcement agencies who understand their mission to serve and protect will roll up their sleeves and find ways to use the law to fulfill their mission, and when driven by the local leaders, enforcement has a better chance of working. Enforcement isn’t only about issuing tickets, but getting out there and helping motorists understand the requirements of the law. If you need a terrific example of this kind of police work, I have it ready.

    Don’t give up Virginia…there is simply too much at stake.

    Thank you,
    Joe Mizereck
    Founder, The “3 feet Please” Campaign

  • So, where is the list of legislators that spoke against the bill? I don’t think it’s inappropriate to widely circulate the list at the grass roots level and give bicyclists and concerned citizens the opportunity to express their displeasure in a professional way, and of course express their pleasure with the legislators that spoke in favor of the bill. It may be against 501c3 rules to do this – lobbying? But a concerned citizen could, I presume.

  • Can someone point me to the respective web sites or documents that have the local 3 foot “ordinances” adopted? Someone pointed out to me that this may NOT be possible in Virginia and I need to know why? Local ordinances is a great idea and I would like to know how to pursue that course of action with my local City Council.

  • John, I have a chart of with all the states’ positions. I will develop a similar chart for the growing number of cities with ordinances.

    Joe

  • Good comments and questions. In answer to the question concerning local ordinances, Virginia is a Dillon Rule state. This means that any authority to enact a local ordinance would have to be granted by the state through legislation.

    Also, for the two existing laws with the proposed changes considered by the legislature edited in-line, please see HB1048:

    http://leg1.state.va.us/cgi-bin/legp504.exe?101+ful+HB1048

    and for the voting record:
    http://leg1.state.va.us/cgi-bin/legp504.exe?101+vot+HV0644+HB1048

  • I have been voting mostly Republican in the past few elections, and I am extremely disappointed in the actions of the Republicans throughout the state. It seems that they have made a partisan issue out of a safety issue. Basically, I am a fiscal Conservative – However, if the Republicans continue to turn a safety issue into a partisan issue, I will gladly shift my support to the Democratic Party. The Republicans in the state need to use common sense, not partisanship. Bill

  • The ones who need to hear this are the ones who just stompted on VA cyclists…get on the phones and computers and let your repressentatives know you are terribly disappointed and mad as hell at them…and you will not vote for them and you will encourage others not to vote for them. Enough people doing this and they’ll feel the pain…and get your spouses, kids and friends to call…and find better leaders to take their places.

    Joe

  • Joe and John, a local ordinance approach in Va is not possible because we are a Dillon Rule state. That means that localities only have the authorities specifically granted to them by the state (i.e. via this law that failed). So without the enabling legislation a locality may not adopt such an ordinance.

    This process demonstrates, not surprisingly, that our legislators need to be educated just as the general motoring public does, and it also reflects the general bias against bicyclists. The arguments that Bruce noted above are downright scary coming from those that makes the laws for this Commonwealth, but not surprising given some of the rubes that are elected to the GA.

  • There is another approach for everyone to consider. First, this bill was not only for the safety of bicyclists, it included electric personal assistive mobility devices (wheelchairs), electric power-assisted bicycles (Town & City bicycle police on patrol), mopeds, animal or animal drawn vehicles proceeding in the same direction. So, the question is; is the bill a good bill or are we simply eager to get something passed with a bicycle header. If you genuinely feel that it is a good bill then contact your senator(s) and delegate(s) if he/she voted ‘YEA’ and thank them for supporting the bill, but if you believe it is a bad bill, thank your senator(s) and delegate(s) if they voted ‘NAY’. On the other hand, if you feel their vote was purely partisan and party-line with no real opinion one way or the other, then express to them that the general citizenry is fed up with party-line voting – be respectful but let them know how you feel. It is easy to forget that one is a servant when politics begin to cloud the arena. Politicians tend to forget that you are more than one vote but you are many. I have done that already.
    Don

  • Fascinating feedback, revealing an irrational, us-versus-them attitude which no logic or reason can overcome. Your rejoinders to their hangups were right on target. So how do we overcome it? Sounds like a PR issue.

    But here’s another angle: when my wife and I argue, if she were ever wrong, I’d still have to take seriously that she genuinely feels what she feels, and then I’d have to work with her from that starting point, whether it makes sense to me or not, and whether it’s fair or not.

    Same thing here. Whatever their rationale, and however wrong they might be, they’re stuck on these issues. We can argue until we’re blue in the face; they’ll still be stuck, and arguing might help them get more stuck.

    So what’s the solution? The onus is on us to own up and fix some problems. Make it unacceptable to blow thru stop signs and lights. Make it cool to be courteous towards other road users. Let them see that we’re neighbors, citizens, voters, and taxpayers.

    This doesn’t mean rolling over and saying that they’re right. They’re not. It means wooing them to win them over. “You catch more bees with honey than you do with vinegar.”

  • Dadgumit!!!!

    Joe

  • Jalob, you are right, VA is a Dillon Rule state, but so is Texas, where Austin and San Antonio picked up the ball that the Governor dropped and they both created ordinances with “3 Feet Clearance” rules.

    So, maybe it can still be done in VA if Austin and San Antonio were able to do it.

    Joe

  • Sorry, meant to say Jakob.

  • Don, all good points. Of course we think HB 1048 and SB 566 were both good bills. But everyone should make up their own mind, and if they’re irritated with the partisanship they should speak up about that too.

  • Joe: great point about the communication/education opportunity. Any new law can get press coverage, plus there would be memos going through all the law enforcement agencies. In cash-strapped times there’s no cheaper way for the state to do a public education campaign.

    Thanks for all your work on this issue!

  • Concerning this bill, Chairman Bill Carrico, retired State trooper continues to argue that these passing distances are not enforceable. In a telephone conversation with him moments ago he maintained his fear when a big truck passed him at a high rate of speed when he had a vehicle pulled over on the highway. His fear was that it would such him into their pathway.

    I wish I had thought fast enough to remind him of Section 46.2-921.1. of the Code of Virginia which deals with drivers to yield right-of-way or reduce speed when approaching stationary emergency vehicles on highways. That law is probably very difficult to enforce but still, it is a recent law.

    It further states that if such vehicle in violation resulted in injury to another person it shall constitute a Class 1 misdemeanor and the court may impose penalty, order the suspension of the driver’s privilege for up to two years as well as.

    The 3′ law may well be unenforceable but don’t you think we should have the same consideration as the State trooper here?

    Just my thoughts; I sent another e-mail to Delegate Carrico about this, just a little something extra to think about if he continues to argue that SB-566 would be hard to enforce.

    Don S

  • Don S.:
    A three foot law is no less enforceable than is the existing two foot law, but I feel much safer riding with the extra margin of safety, don’t you?

  • John and others, you asked for a listing of states with the “3 foot” law. I have placed that list on my site along with the handful of cities that have passed ordinances. I will be speaking with the Austin attorney in the city’s office who wrote the language for the Austin ordinance. I will certanly learn then how they were able to do this in light of being a Dillon Rule state.

    For the state-bystate chart go to: http://www.3feetplease.com/State_by_State.html

    It’s not over…

    Joe

  • As cyclists,we know about the current two foot zone and propsed 3 feet. Do drivers? Do they really care?

    There’s barely a penalty for hitting a trooper in the law cited above – a class 1 misdemeanor. My Dad’s magistrate & a class 1 misdemeanor is the same penalty as marjuana possession? 1yr in jail and/or $1000 fine. I want more protection than that if someone hits me – for myself (if I live) or the loved one left behind. Just sayin.

    You know when the law will change & quick.? If / when one of our elected officials loses a loved one to a careless driver. Then it effects them and they act.

    People are invested in things that effect them right? How can we get the GA invested in our issue? Other than some cyclists that vote (probably not a great %) how does the 3 foot passing ordinace effect them? Maybe if we could show them an analysis of the financial loss state by the state and/or local government each time a cyclist is hit? How much does it cost if a driver hits a cyclist in – state health funds, ambulance / EMT response, road closing, police time for the investigation, criminal & civil litigation in the court system..I must be leaving out some other things.

    Anyway, that’s my 10 cents worth. I just want to ride, have drivers pass me safely and avoid road rage like the guy with the license plate BLSSSD showed me one recent Sunday morning after he almost ran me off the road, honked and pointed to the shoulder. And, oh by the way, his female passenger had the courtsey to roll down the window and flip me off. Yes, seriosuly. I wish I could say I laughed but I was livid and tried to chase them down. I was told I can’t charge a vehicle (recent California case not withstanding) you have to get the driver’s license number. Like he was gonna stop for a chat after that. So when I called 911 I was told there was no place for them to record my call…that calmed me right down.

    Be Safe Out There!
    Scott

  • Who can I write to vent my frustration? If I had emails or mailing addresses right in front of me I’d do it today!

    Anyone already have those ready?

  • With respect to costing figures for a traffic fatality in Virginia, perhaps a reader of this post can offer an authoritative number, including a short breakdown of the basis for it.

  • Scott Troy brings up a good point about drivers knowing and caring about providing safe separation from other roadway users. The relatively mild penalty for running over a trooper is an example of the low expectations that we have grown accustomed to with drivers.

    Take a look at some of the bills trotted out before the legislature this year:
    1) ban talking on a cell phone while driving
    2) enhance the “move over” law to include protection for yellow flashing light vehicles
    3) increase the requirements on drivers to stop and/or yield to pedestrians
    4) 3 ft passing/following to closely to enhance bike safety

    The fundamental basis for these and other laws already on the books (such as penalties for speeding in construction zones) is to draw a line on those driving behaviors that society considers particularly egretious and dangerous for other lawful users of the public roads.

    It shouldn’t be necessary to enumerate in law every possible harmful action that a driver can do. But without individual prohibitions, drivers don’t seem to take much notice. As a category, these are often difficult to enforce, unless witnessed directly by a police officer or a crash ensues which creates compelling physical evidence.

    However, such laws do have instructional value and enhance public awareness of safe driving practices. “It is illegal to…..” gets much more attention than “DMV strongly suggests that you don’t….”

  • Just had a good conversation with the City of Virginia Beach City Attorney’s office. I spoke with one of the staff attorneys. I explained that I was interested in seeing if a proposal could be made for an ordinance to give vulnerable road users at least 3 feet space when passing from the rear even without the law being anchored at the state level. I explained the concern about the Dillon Rule. She said she would explore this and get back with me next week.

    I don’t think we should stop until someone says it cannot be done (remember, Texas is a Dillon Rule state, and both Austin and San Antonio established ordinances).
    So, let’s see what happens. If she comes back and says it can be done, be thinking about who can champion this proposal in Virginia Beach…and elsewhere.

    http://www.ci.austin.tx.us/council_meetings/wams_item_attach.cfm?recordID=19924

    Thank you,
    Joe Mizereck

  • I would argue against Carrico’s position that the 3 feet law is NOT enforceable. I’m a police officer in Henrico County. I have 4 years in Henrico, and I worked for 6 years in the City of Richmond before that. So I think it’s safe to say I have enough experience to argue against Del. Carrico.

    The thing about the 3 feet law and it’s “enforceability” revolves around one key argument. The officer is not able to actually measure the 3 feet distance. So if a motorist passes a cyclist and gives 2 feet 6 inches of clearance, how can she be charged with anything? But my argument is not with 2 feet 6 inches… it is with a motorist giving me or another cyclist 2 inches, 3 inches, whatever! It might be hard to articulate in court if a cyclist is given 6 inches vs. 2 feet. But if you add an extra foot to that requirement, it starts becoming a little clearer and easier to argue to a Judge.

    So hypothetically speaking, say I’m on patrol and I witness a motorist pass a cyclist and they only give the cyclist a few inches of room, basically almost hitting the cyclist. I can charge the motorist now, because they didn’t give the cyclist 2 feet. But it only makes my argument and case against the motorist that much stronger if the law requires 3 feet! It’s a lot easier to argue to a Judge that you can “eyeball” an estimation on 6 inches of clearance vs. 3 feet of clearance. Take away that extra foot, and it’s likely to get thrown out of court. It might get thrown out anyway, because a lot of Judges and Police Officers don’t take laws pertaining to cyclists seriously (that’s another issue for another day, and one I’ll be working on in the Metro Richmond area in the future).

    But like I said, if it’s close, like 2 feet 10 inches… it’s not an enforceable law. That being said… I can write you a speeding ticket for going 1 mph over the limit. But I don’t. I wait until someone is going 13 mph (unlucky 13) before I’ll initiate the stop. Same with stop signs. Technically, if your wheels don’t stop moving, I can write you a ticket. But I usually don’t unless you carry some speed through the stop sign. It all falls back on discretion and what you can articulate in court.

    So that’s my argument why 3 feet IS ENFORCEABLE! It’s not a difference of 2 feet 11 inches is against the law. It makes it easier to get a conviction on 2 inches of clearance when passing a cyclist. I know I’ve had my handlebar tape grazed by vehicles’ side mirrors numerous times. That wasn’t 2 feet, and it definitely was not 3 feet!

  • A 3-foot rule may be enforceable. But where is it ever enforced in cases that don’t involve fatalities?

  • Peter, it’s not enforced… anywhere. And probably not even where there are fatalities. Because in those cases, it’s probably going to be Reckless Driving or Manslaughter. Unfortunately most cops aren’t cyclists and wouldn’t charge a motorist with this, if they even knew it existed.

    So another reason Carrico’s argument is a moot point. It’s not like cops would go out and start charging people with failing to give 3 feet to cyclists as soon as the law passed. And I doubt they would charge someone for crossing a double yellow to give a cyclist plenty of room.

  • What about Cycling Jerseys that says Thanks for Your Support / 3Feet When Passing & Share The Road. Or, do you think that’ll just make me / us a clearer target? You know like a bullseye to aim at for drivers. Wish I could sound less cynical.

  • The laws will come, and more of them. Biking-as-transportation can only increase.

  • Last year I lost a friend to a horrible bicycling accident when he was killed.
    Had he signaled properly this accident may never have occurred.

    Why turning signals are not a requirement for all bikes, I’ll nver understand.
    I purchased mine at safetybikesignals

  • richard: cyclists are required to use turn signals, just as other drivers are. Hand signals are effective and legal. There’s no need for special equipment. The key is to get in the habit of signaling.

  • Now is the time to begin work on getting the law adopted next year. Toward that end, may I suggest a letter or call in the next few days to SB566 patron:

    Senator Patricia S. Ticer (D) – Senate District 30
    301 King Street
    City Hall, Room 2007
    Alexandria, Virginia 22314-3211
    (703) 549-5770

    She did what she could to get the 3 Foot Clearance bill passed. Let her know that you appreciate her work on behalf of Virginia cyclists and also let her know that you stand ready to help her get the job done next year.

    Joe Mizereck
    joe@3feetplease.com

  • I think we have a partisan issue here. The Republican Party clearly defeated the plan. Not a Democrat voted against the law. We need to talk to every Republican legislator in our districts and surrounding districts and educate them on the need to pass the three foot rule. If we do not do this, we will have the same problem next year, because in 2011, the Republicans will again have a 59 to 38 majority with 2 independents always voting Republican. I do not think that they are going to back down, unless suddenly money disappears from their coffers or they have fear about the election in November 2011. Bill Hart

  • Hello everyone. Here’s an update. I am a firm believer that where there is a will there is a way and so it is with Virginia Beach. I understand that Virginia follows the Dillon Rule, but Texas does as well and still Austin and San Antonio, in light of the fact that the Governor there vetoed the 3 foot bill, have both adopted vulnerable user ordinances that include a requirement for motorists to give cyclists and other vulnerable road users 3 feet clearance when passing from the rear. So, with that in mind I asked one of the attorneys in the City of Virginia Beach to think about how the city might follow Austin’s example and score a victory for the city’s vulnerable road users.

    The good news is she didn’t brush me off, and the better news is she is seeing if and how it might be done.

    I share this with you now because if she indeed rolls up her sleeves and moves forward with some action she will need folks from the Virginia Beach area to give gher a hand. That may mean meeting with the City Council and presenting our/your case for the ordinance.

    So, please let me know if you are from that community and are willing to help make this happen. Email me or call me and let me know your wishes: joe@3feetplease.com or 1.800.761.0907

    There’s too much at stake to let this wait until another go at the assembly…if this works, then other cities in Virginia will follow and lives will be saved.

    Thank you,
    Joe Mizereck

  • Bruce Drees and I are both from Virginia Beach, and we are both on the Virginia Beach Bikeways and Trails Committee. We have a committee meeting on Monday, and I will let you what reaction we get about this. Bill Hart

  • Sounds good Bill.

    Thank you,
    Joe Mizereck
    joe@3feetplease.com

  • Dear Gang,
    You’d have thought the 3 foot legislation would have been a “no brainer.” At our law shop in Herndon and in our other law blog (www.LandauInjuryLaw.com) we have noted bikers ticketed after being trampled ! I am particularly disappointed by Rust and wrote about this in tomorrow’s post on my sports site.
    http://theathleteslawyer.com/cases/give-me-3-feet-give-me-3-feet-mister/
    Thanks for keeping this cyclist in the loop, enjoy the VASA ride, doug

  • Hello,

    I find it amazing how legislation points the finger at cyclists and their issues with being on the road, but as Bruce pointed out motor vehicles make more errors then cyclists. If a cyclist hits a motor vehicle, that person will still live. This is obviously not the same case when considering if a motor vehicle hits a cyclist.

    They stated how it impairs the motor vehicle from getting to their destination faster. Most of the time people are lazy and leave late which pushes them to speed and cause accidents. If people would manage their time better and not be in such a rush all the time, they wouldn’t have to speed and possibly cause less accidents.

    When I hear ridiculous remarks like the ones Bruce pointed out from legislation it intices me to want to get more involved.

    Besides donating money in support of this cause for the continued support, are there other ways of being able to help support this cause for 2010/2011?

    Any assistance would be greatly appreciated.

    Brian Lilley

  • I learned a valuable lesson with the recent vote on the change to the distance for passing a cyclist. I had left a telephone message but did not write or personally speak with my state representative who is a great guy and a friend. He responded to my e-mail saying that he had not heard from any cyclists asking that he vote for the change but that several representatives he voted with voiced reasons to vote against the law. Shame on me. I should have been more active and encouraged our cycling community to contact legislators. Just 6 votes different and we would have won this issue. Hopefully, next year we will pervail.

  • Stan, that’s ok, great learning experience. Need a debriefing to look at what was done well, where things could have beendone better and come up with a strategy for next year…and next year begins now…educating law makers, getting them on board and moving this thing forward to success.

    Joe

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