Claiming the Place that is Yours as a Florida Bicycle Driver.

How many times you have driven on the road and you hear the rumble of a gas-powered vehicle behind you and clench your teeth for the sound of the swish of the front end or right mirror of within inches of your left handlebar. How many of you have been grazed by a right rearview mirror? I know every one of you gets that feeling. I have had nightmares about it. My clients, who have been struck by a careless or distracted motorist, know that feeling all too well. There’s a saying that “time heals all wounds.” I can tell you, from my clients stories if you have been the victim of a violation of the three-foot rule, time does not heal that wound. The next time a vehicle drives close to you, that memory will rise fresh and new like anxiety from recurring cancer diagnosis. It can be akin to the sound of death.

I write this today to humbly suggest cyclists need to claim part of the road which is rightfully theirs. Now why would we be able to do that? Under what legal construct would this be permissible? To quote the Bard of Stratford-upon-Avon: “Though this be madness, yet there is method in’t.” To answer this question we have to understand the difference between “shall” and “may” in the law. The law 316.083(1) says:

316.083 Overtaking and passing a vehicle.—The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction….
(1) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall give an appropriate signal …, 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. The driver of a vehicle overtaking a bicycle or other nonmotorized vehicle must pass the bicycle or other nonmotorized vehicle at a safe distance of not less than 3 feet between the vehicle and the bicycle….

Wow! Three “shalls” and a “must.” Not a SINGLE “may.” In the rules governing conduct contained in Florida statutes, Florida ordinances, Florida regulations, the federal statutes and federal regulations, the word “shall” denotes conduct that must occur. Same with the word “must.” There is no mandate with the word “may.” You don’t have to do anything.

However, a judge, attorney, law enforcement officer, must enforce the conduct required when the statute or ordinance says “shall” or “must.” Same deal for the people who are required to follow by the laws. To be facetious, if the statute said you “may” drive in the opposite direction of traffic (316.082), run stop signs/red lights, if you don’t feel like stopping (316.123/316.075), not yield to vehicles already in an intersection(316.121), well by golly it’s up to you. However, none of the preceding statutes in the preceding sentence have “may” and don’t allow any of that conduct.

The word “shall” in all of those statutes is the same “shall” that appears in the law mandating a safe distance which is a minimum of three feet by a vehicle passing a bicyclist. Same “shall.” This is conduct that must be done. There is no room for variance, interpretation, alteration or neglect by any driver nor any law enforcement officer. When this three foot space/safe distance does not occur, a statutory violation has happened; law enforcement shall/must issue a ticket.

Why? Are you paying attention? Read the *&%$@ statute! It clearly says there drivers “SHALL” pass a “SAFE DISTANCE” or at least a MINIMUM of THREE FEET between the passing vehicle and the bicyclist. The statute doesn’t stutter, it’s not written in invisible ink, it’s not in Russian and UV light is not required to read it. I had an eight-year-old read it and explained it to me. ANY ADULT WHO CAN READ UNDERSTANDS THIS STATUTE. You would think law enforcement would UNDERSTAND THIS and writing more tickets for this wouldn’t you? Many do, but some can’t read English and understand laws they are required to enforce, or else there’s another problem. Perhaps it’s not wanting to do their jobs, they are lazy, they hate bicyclists, they are jealous of being stuck in a car for work. Who knows? We do know some law enforcement is not enforcing even the “safe distance” rule much less the “Three Foot Rule.”

If your bicycle and body occupy twenty-eight (28) inches of the area closest to the right edge of the road as required by statute (316.081), then under 316.083(1), the three feet to the left of the furthest most portion of your bicycle is also your space. It is yours because Florida law deems you are entitled to a “safe distance” which is at a minimum three feet of clearance by every vehicle that passes you. This is the law since 1971. I have yet to personally know a motorist which struck a cyclist who got a ticket for violating 316.083. Let me explain, if you hit the bicycle driver, you, did not give him the minimum “safe distance” of three feet as required by Florida statutes. How is this hard to understand for law enforcement? I don’t think it is. I can tell you that I know of no more than four motorists who had been cited with this statute in the thirty-one years I have been representing injured cyclists. That’s one ticket for every eight years of my practice.

If there is supposed to be a “safe space” or a three-foot minimum between our bodies and where motor vehicles can pass us, then that space belongs to us, the cyclist. I humbly suggest we can occupy that space because motor vehicles are not supposed to be there ever. I can read the law; it clearly says “shall” and it “must.” So……

I am not asking you to swerve into 3 feet from your current path into the lifesaving buffer to which you are legally entitled. No, I humbly observe you could give motorists assistance, an aide, a guide, a helper to assist motorists, if you will, keep out of the three feet from the edge of your bicycle.

It’s been done before.

My friend Robert Lorin Andrews ([email protected]) built this device. Imagine you are driving your car and see his bicycle on the road with this. You are instantly arrested and your attention is focused laser-like with the thought of the capacity of that rake to do damage to the side of your precious car. Why doesn’t that attention get the laser like focus when there’s a vulnerable human body without this device? The practical question is, if that rake is three feet from the center of his vehicle and not three feet from the edge of his vehicle, how is it not legal? This is an answer that evades the few law officers who have stopped and questioned Robert about his “little assistor” for motorists. He merely cites the statute and shows them that the rake is not more than three feet from his edge of his vehicle. So, he’s well within the area he’s entitled to occupy. He tells me he has not gotten a ticket yet.

Now, as an “officer of the court” I am not an advocate for the violation of any law. However as an advocate for cyclists, as a citizen in my community concerned about the constant, incessant and unbelievable slaughter of cyclists on the road, as an attorney helping injured cyclist recover their lives and as a cyclist myself, a motorists aide like this makes sense. You are helping motorists obey the law. Of course, as a traditional advocate, you can do the following: 1. Speak to every police officer you can and ask him/her how many times they’ve written a ticket for violating the “Three Foot Rule.” (Give them a copy of the statute, http://tinyurl.com/yb7ctsh7) 2. Go to your city council and ask them why law enforcement is not enforcing “Three Foot Rule” with tickets. 3). Schedule a visit with your police chief, county sheriff Highway Patrol station and asked those there: “What can be done to write more tickets for violating the “Three Foot Rule.” 4). Write letters to your newspaper and call into the local action news team and ask “Why aren’t tickets written for this very easy to understand law? If those avenues to protect yourself don’t work,as a nontraditional advocate, you could buy or copy “Robert’s Little Assistor.”

It is important to be an advocate for cycling with your elected representatives. I am just saying, you possibly can also assist motorists to keep three feet away from your bicycle in clever ways like Robert’s. It is time we reclaim that space and do it by any legal means. Today, a rake, tomorrow an activator for an air horn, a neon yellow stock tipped with a razor blade arrowhead, a can of neon spray paint? In the meantime, talk with your community leaders explain to them how this statute says “shall” and remind them they have to enforce this law.

If you are injured and searching the web for an attorney, stop clicking now.

I am a full-service personalized, personal injury lawyer with a statewide practice in all 67 counties. I have 31 years of experience to put to work for you. Call so I can answer your questions: 1-800 – 535 – 3002. Email: [email protected] Skype: ScienceCan Facebook: https://www.facebook.com/JSteeleLaw/ Twitter: @JSteeleOlmstead or @FlaBicyleLawyr Whatsapp: J. Steele Olmstead Instagram: jsteeleolmstead.