Three Foot Law Protection for Cyclist in Ohio and Kentucky – Part 1 of 2

On my second visit to the Two Johns Podcast, we discussed both Ohio’s and Kentucky’s Three Foot Passing Laws and how they protect Cyclists. This article is the first of two comparing and contrasting Ohio’s Three Foot Law for Cyclists with Kentucky’s Three Foot Law for Cyclists.

Our friends at the National Conference of State Legislatures offer us the following summary:

In 1973, Wisconsin became the first state to enact such a law; several more states have since enacted such measures. As of April 2020, 33 states—Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Virginia, Utah, Washington, West Virginia, Wisconsin and Wyoming—and the District of Columbia have enacted passing laws that require the motorist to leave at least 3-feet or more when passing a bicyclist.

North Carolina has a 2 feet passing requirement for motorists, and also allows passing in a no-pass zone if a motorist leaves 4 feet clearance.

Two states have laws that go beyond a 3-feet passing law. Pennsylvania has a 4-feet passing law. South Dakota enacted a two-tiered passing law in 2015; with a three-foot passing requirement on roads with posted speeds of thirty-five miles per hour or less and a minimum of six feet separation for roads with speed limits greater than thirty-five miles per hour.

Additionally, five states, Delaware, Kentucky, Nevada, Oklahoma and Washington, require a motorist to completely change lanes when passing a bicyclist if there is more than one lane proceeding in the same direction.

In 8 other states, there are general laws that provide that motorists must pass at a “safe distance.” These laws typically state that vehicles must pass bicyclists at a safe distance and speed; Montana’s law, for example, requires a motorist to “overtake and pass a person riding a bicycle only when the operator of the motor vehicle can do so safely without endangering the person riding the bicycle.”

Ohio enacted its Three Foot Law in 2017.  As will be discussed in Part 2 of this series of Articles, Kentucky enacted its Three Foot Law in 2018.

Ohio’s Three Foot Law can be found in Revised Code 4511.27 entitled “Rules Governing Overtaking and Passing of Vehicles.”

(A) The following rules govern the overtaking and passing of vehicles or trackless trolleys proceeding in the same direction:

(1) The operator of a vehicle or trackless trolley overtaking another vehicle or trackless trolley proceeding in the same direction shall, except as provided in division (A)(3) of this section, signal to the vehicle or trackless trolley to be overtaken, shall pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle or trackless trolley. When a motor vehicle or trackless trolley overtakes and passes a bicycle or electric bicycle, three feet or greater is considered a safe passing distance.

(2) Except when overtaking and passing on the right is permitted, the operator of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle at the latter’s audible signal, and the operator shall not increase the speed of the operator’s vehicle until completely passed by the overtaking vehicle.

(3) The operator of a vehicle or trackless trolley overtaking and passing another vehicle or trackless trolley proceeding in the same direction on a divided highway as defined in section 4511.35 of the Revised Code, a limited access highway as defined in section 5511.02 of the Revised Code, or a highway with four or more traffic lanes, is not required to signal audibly to the vehicle or trackless trolley being overtaken and passed.

(B) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.
If the offender commits the offense while distracted and the distracting activity is a contributing factor to the commission of the offense, the offender is subject to the additional fine established under section 4511.991 of the Revised Code.

Note the language of the statute’s “requirement”: “When a [motorist] overtakes and passes a bicycle or electric bicycle, three feet or greater is considered a safe passing distance.”  Contrast this statutory language with the United States’ first Three Foot Law: “Exercise due care, leaving a safe distance, but in no case less than three (3) feet clearance when passing the bicycle and maintain clearance until safely past the overtaken bicycle” as found in Wisconson’s Wis. Stat. § 346.075.  When one drills down into the detail of Ohio’s Three Foot Law, it reads more like a suggestion than a mandatory prohibition on passing distances between a Cyclist and an overtaking motorist.

The consequences of Ohio’s less mandatory statutory language would be more significant in traffic court or a criminal court where defense counsel for the accused will invariably argue that the unique circumstances of his or her client’s case justified a one or two-foot pass as “safe.”  There are scant resources available that track citations pursuant to R.C. 4511.27 in Ohio’s eighty-eight counties.  So we have little idea of how often Ohio’s Three Foot Law is being enforced and with what level of success.  However, we do have a standard to enforce in a civil case where a cyclist is injured or killed as a result of a crash with a passing motorist.  A cyclist rarely wins – like never – in a crash with a passing motorist.  And the fact that the crash occurred is damning evidence that the motorist violated Ohio’s Three Foot Law and there is tremendous value in that.  Further, most citizens in Ohio have never read R.C. 4511.27 and only know that Ohio has a “Three Foot Law” designed to protect cyclists.  There is even more value in a conversation and increased awareness of legislation designed to protect cyclists in Ohio.

Ohio’s Three Foot Law must be read in conjunction with Ohio’s AFRAP Law for Cyclists which requires Cyclists to ride as “As-Far-Right-As-Is-Practicable.”  Ohio’s AFRAP requirement for Cyclists can be found in R.C. 4511.55:

(A) Every person operating a bicycle or electric bicycle upon a roadway shall ride as near to the right side of the roadway as practicable obeying all traffic rules applicable to vehicles and exercising due care when passing a standing vehicle or one proceeding in the same direction.

(B) Persons riding bicycles, electric 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, electric bicycles, or motorcycles.

(C) This section does not require a person operating a bicycle or electric bicycle to ride at the edge of the roadway when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway include when necessary to avoid fixed or moving objects, parked or moving vehicles, surface hazards, or if it otherwise is unsafe or impracticable to do so, including if the lane is too narrow for the bicycle or electric bicycle and an overtaking vehicle to travel safely side by side within the lane.

(D) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.
If the offender commits the offense while distracted and the distracting activity is a contributing factor to the commission of the offense, the offender is subject to the additional fine established under section 4511.991 of the Revised Code.

“Practicable” is undefined anywhere in the Revised Code which leaves it in the eyes of the beholder – or a judge or a jury of your peers.  Where a cyclist is charged with violating R.C. 4511.55 there is a constitutional argument that the criminal prohibition is “void for vagueness” and therefore unenforceable, but that makes for a separate and much longer article.

Where a cyclist is injured as a result of a crash, R.C. 4511.55 can come into play if the crash occurs within the road’s white lines.  The motorist in that situation will invariably assert that there was sufficient “roadway” or “shoulder” or “berm” for the cyclist to ride more safely or “more practicably” to the right so as to have avoided the crash.  This sets up some very obvious tension for a cyclist using Ohio’s roads.  If you ride within what is commonly understood as the roadway or within the right lane so as to be established and predictable in your movements you could be criticized for not being more “practicable” and riding within the berm or shoulder (if available and practicable).  On the other hand, if you ride as far right as possible, you could be weaving along the right-most portion of the road/roadway and appear erratic and unpredictable.  You could also be exposing yourself and fellow cyclists (if on a group ride) to problematic tarmac and other hazards that find their way into a shoulder or berm.   Fortunately, R.C. 4511.55 contemplates this tension and provides that a cyclist is not obligated to ride as far right as possible, or on the “edge of the roadway”: “This section does not require a person operating a bicycle or electric bicycle to ride at the edge of the roadway when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway include when necessary to avoid fixed or moving objects, parked or moving vehicles, surface hazards, or if it otherwise is unsafe or impracticable to do so, including if the lane is too narrow for the bicycle or electric bicycle and an overtaking vehicle to travel safely side by side within the lane.”  Subsection (C) provides a safety-valve of sorts, allowing a cyclist to argue that the conditions at the “edge of the roadway” would not permit safe riding.  However, this does leave open the question of whether a cyclist is obligated to ride in an unobstructed or hazard-free shoulder or berm.

Cycling accidents that occur as a result of a motorist passing or overtaking a cyclist are fraught with peril.  If you are the victim of such an accident, do not hesitate to reach out to Chris at Carville Legal Counsel, LLC.  We offer FREE consultations. Chris can be reached at Ch[email protected] or 513 600 8432.