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An Opportunity to Help Motorists and Cyclists: A “Change-Lanes-and-Pass” Rule

My neighborhood has many polite drivers who wait behind me as I ride on two-lane MD-953, which has double yellow (no passing) lines the whole way. I am usually in the center of the 10-ft lane, pulling a trailer with my daughter.  Even when I don’t have the trailer, 95% of the drivers wait until the oncoming lane is clear, change lanes, and pass.  And when I am riding toward the right side of the lane for some reason, the vast majority still change lanes to pass.

Countless drivers have probably done you the same favor on another road. But they are technically breaking the law.

We think Maryland should legalize changing lanes to pass a bike riding in a no-passing zone. Not only are these drivers being safe, they actually enhance safety.

Why would cycling organizations initiate a reform that increases motorists’ rights? Aside from the fact that it probably will make us safer, cyclists probably understand this issue better than motorists. Cyclists have discussed many “rules of the road” that make sense for motor vehicles, but do not enhance safety when applied to bicycles. We would love to see those laws reformed. In some cases we may lack the political power to compel the changes we hope to see. But we probably do have the power to secure the right to change lanes and pass a bike when there is a double yellow line. So I think we should.

But Let’s Not Go Too Far: The “Partly-Cross-the-Line and Pass” Rule

By coincidence, some other Maryland advocates are considering a similar reform, but they would go even farther. Their idea is to allow drivers to cross the double yellow line to pass bikes, without the requirement to fully change lanes. This “partly-cross-the-line and pass” rule seems to be motivated by the observation that some cyclists ride far enough to the right so that a car barely has enough room to squeeze between the bike and the yellow line, and some drivers do. This rule would allow motorists to move only partly into the adjacent lane to pass the cyclist by the required three feet.

We prefer the requirement that the motorist fully change lanes. Motorists frequently report difficulty in gauging the three feet of space they are required to leave when passing, so why not apply the normal requirement that motorists change lanes? It is an existing behavior with clear rules and expectations. There is no need to encourage drivers to pass while occupying parts of two lanes.

Additionally, the requirement to change lanes before passing would discourage the idea of “squeezing” around others—whether the cyclist or a potential oncoming motorist. Finally, the State of Maryland will soon start erecting signs that say “Bicycles May Use Full Lane”. We think that “change lanes and pass” better reinforces the message of those signs, than partly crossing the line and sharing the lane.

Over the next few weeks, advocates in Maryland will be deciding which approach to take. While WABA took a major role last year in the promotion and passage of the Maryland vehicular homicide law, this year WABA intends to play a supporting role to Bike Maryland, which frequently leads statewide efforts to enhance cyclists’ rights through state legislation.

(Jim Titus is a member of WABA’s Board of Directors from Prince George’s County)

WABA is urging Prince Georges County to continue with plans to connect the Anacostia River Tributary Trails with the Washington, Baltimore, and Annapolis Trail. At the annual budget hearing last week, WABA board member Jim Titus urged the Maryland National Capital Park and Planning Commission (M-NCPPC) to authorize $45,000 this year to extend the WB&A trail about 2 miles westward across US-50 and the Capital Beltway. (See map).

The WB&A Trail follows the right of way of the old WB&A railroad from the Patuxent River in Bowie to MD-450 in Lanham. MD-704 has been built along the right of way from about that point to the DC line. Many people who use the WB&A Trail would like to continue along MD-704, but doing to can be hazardous because the speed of traffic is typically 55-60 mph, and there is no shoulder along MD-704 until one crosses to the other side of US-50.

Extending the WB&A across US-50 and the Capital Beltway would immediately improve the usefulness of the trail because the Beltway is often a serious barrier to mobility. It would also provide a route to the New Carrollton Metro. On the broader scale, extending the WB&A across the Beltway is a key step toward the eventual goal of a trail between the WB&A and the Anacostia River.

Last year, Councilman Eric Olson persuaded M-NCPPC to commission a design study on how to connect the WB&A to the Anacostia River Trail. More than $125,000 was set aside for the study, whose scope of work included the following task:

Identify appropriate long-term improvements necessary for a safe and attractive bicycle and pedestrian connection(s) linking the Anacostia Trail Network with the WB&A Trail. This portion of the study should address the “big picture” of how we ultimately want to connect the Anacostia Tributaries Trails Network with the WB&A Trail over the long term. This route(s) may serve as the alignment for the East Coast Greenway and the America Discovery Trail within Prince George’s County, as well as serving as a critical east-west connection in the countywide trails network.

The winning contractor’s bid was for less than half the money—but in the end, the contractor only did half the job. The study designed a trail from the Anacostia River to New Carrollton, but not the “safe and attractive connection” between New Carrollton and the WB&A Trail. We are hoping that M-NCPPC will now complete the study—possibly using the funds that were left over from last year.

M-NCPPC’s decision to focus on the inner portion of the Anacostia to WB&A corridor is understandable, given the County’s need for safe bike routes into the District of Columbia. Yet the near-term opportunities from extending the WB&A may be just as great. This two-mile extension would probably be built by the State Highway Administration (SHA) because it will follow MD-704. It is already the county’s top bike-ped request to SHA. While SHA’s budget is down, it has not declined to the same extent as M-NCPPC‘s budget, which relies on the property tax in a county where assessment are down 40%. So this is an opportunity to leverage scarce resources to accomplish something big.

We are mindful that many of our members are especially interested in extending the WB&A Trail east into Anne Arundel County, where a 4-mile segment to Odenton has been built. Officials hope to eventually build a trail along the right of way of the WB&A’s South Shore line from Odenton to Annapolis. For the last decade the planned trail crossing over the Patuxent River has been on hold because the owners of the right of way on the Anne Arundel side of the river oppose the trail. (We offer our condolences to the family of Buz Meyer, the most prominent foe of the trail, a devoted naturalist, and community-minded environmental educator and gun safety instructor, who died last month.) Although Anne Arundel County and a developer own the land immediately next to the right of way, the County has chosen not to pursue a trail next to the right of way, for reasons it has not stated publicly. (County officials did make off-the-record statements about their thinking; but it is unclear whether those reasons are still relevant today.)

County officials have instead pursued a detour that would cross the Patuxent River about ½ mile northwest of where the trail currently reaches the river on the Maryland side. The Maryland State Highway Administration and M-NCPPC are cooperating with Anne Arundel on the detour crossing.

Rail trails almost always follow the old railroad right of way as closely as possible, unless there are unusually compelling reasons for a significant detour. Such reasons may exist in this case, but so far they have not been articulated to the public.

WABA is unlikely to play a leading role in the extension of the WB&A Trail eastward from Bowie to Odenton and beyond. Our area of advocacy includes Prince Georges County, but not Anne Arundel County. Nevertheless, we are concerned that the long-established plans of Prince George County and the City of Bowie for the trail to cross the Patuxent near the old railroad bed may be cast aside for an inferior detour, without a serious effort by local governments or the State of Maryland to engage cycling organizations in a dialogue about the alternative routes and potential costs and benefits of each option. We hope that the voices of bicycling advocates statewide, including groups like like Bike Maryland, the Maryland Bicycle and Pedestrian Advisory Committee, and the Prince Georges Bicycle and Trail advisory Committee, will all be consulted before the state or M-NCPPC takes significant steps to move the trail’s crossing away from the railroad right of way.

Thanks to you, our WABA members and supporters, the Maryland State Highway Administration is very likely to adopt a sign that says “Bicycles may use full lane” and post the sign on many roads where lanes are too narrow to share side-by-side.  But most narrow roads are operated by local governments, and we don’t yet know what they will do.

A quick recap of where we are on this issue.   As Maryland’s new Driver Manual points out, often “the safest place for a cyclist to ride is in the center of the lane.”   If you ride too close to the right edge, people pulling out of side streets or driveways may not see you.  Some drivers pull a few feet onto the pavement before stopping and observing traffic.  It is not practicable for a driver to yield to you if she cannot see you.  So Maryland’s general requirement to ride as far to the right as practicable and safe,[1] means that one should ride within a few feet of the right side of the roadway, not along the right edge.  And many lanes are too narrow to share side-by-side even if you do ride all the way to the right.[2] Yet some drivers will try to squeeze past, which is very unsafe.  Recognizing this safety issue, the Maryland Transportation Code allows a cyclist to use the full lane if it is too narrow to share side-by-side with an automobile.[3]

Unfortunately, many drivers do not realize that cyclists are just trying to be safe and responsible when they ride in the center of the lane.   Some drivers yell, honk, or aggressively pass a bike with very little clearance as if to say “you are not where you are supposed to be.”

Michael Jackson of the Maryland Department of Transportation has been concerned about this problem for the last decade, and has long advocated the use of signs to inform both cyclists and motorists that bicycles can use the entire lane.  (He first noticed such a sign along 13th Street, NW (see photo by Michael Jackson) while bicycle commuting to school during the 1970s.)   But for a sign to become widespread it must be part of the Manual of Uniform Traffic Control Devices (MUTCD).   Fortunately, Jackson is also on the Bicycle subcommittee of the National Committee on Uniform Traffic Control Devices, which revises the MUTCD every few years.  He helped persuade his subcommittee to put forward the R4-11 sign, a white rectangular sign that says “[bicycles] may use full lane.”

The R4-11 sign became part of the federal MUTCD in December 2009.  Many states automatically adopt the MUTCD; but Maryland has its own MUTCD, which is similar—but not identical—to the federal MUTCD.   Last summer, the Glenn Dale Citizens Association asked SHA to post R4-11 signs in and around Glenn Dale.  In May, SHA responded that it had decided not to adopt the R4-11 sign.  We did not find out about that letter until late June, at which point, we sent an alert advising members to write the Governor and other key officials and ask them to reverse that decision.  More than 600 people did so.

Within days, Maryland’s Secretary of Transportation Beverly K. Swaim-Staley responded to the 600+ people who wrote, promising that SHA would issue guidance for the R4-11 sign, and referring people to Tom Hicks of SHA.

About a week later, Mr. Hicks sent me a graphic of a yellow diamond sign with the wording “[Bicyles] May Use Full Lane.” It was the same as the original sign that SHA had rejected in May, except with a big yellow diamond instead of a modest sized white rectangle. WABA’s executive director Shane Farthing told me: “Few people other than those in this email chain will care whether it is a white rectangle or a yellow diamond.”   So we told SHA that this sign would be fine and explained to SHA that our main concern is not the shape and color of the sign, but with the widespread use of the sign to communicate both that cyclists may be in the roadway ahead, and that they have a right to be.  Another SHA official told me that SHA staff was pleased with its innovation and likely to post the signs wherever communities sought them.

Highway officials pleased about a sign that says “Bicycles May Use Full Lane.” That’s progress!

State officials still appear to be deliberating on whether the yellow diamond or white rectangle is the way to go.  WABA and other Maryland advocates have steered clear of taking a position on that question.

But we do want to see these signs along the streets where we ride, not just in the manual.  Montgomery County intends to post the signs.  But Prince Georges County has been less enthusiastic.  Last May,  Haitham A. Hijazi, Director of the Department of Public Works and Transportation (DPW&T) told Shane Farthing and me that he would only be willing to post the sign on roads with at least two lanes in the same direction and neither a shoulder nor a sidewalk.  (In subsequent correspondence, DPW&T has also emphasized that even along these multi-lane roads they will not post the official R4-11 sign from the MUTCD, but instead will post the older “Bicycles may use full right lane” signs.)

For almost a year, DPW&T has been saying that it will not post R4-11 signs (or sharrows) on narrow two-lane roads.  I am not sure why—or whether everyone at DPW&T objects to the R4-11 signs for the same reason.  Last fall, I asked DPW&T to put sharrows and an R4-11 sign on a short and narrow section of Church Road, on which I rode when taking my daughter to pre-school.   The planners from the Maryland National Capital Park and Planning Commission quickly endorsed my request because the county master plan shows this road as a bike route.  But DPW&T wrote back and denied my request on the grounds that the geometry of the road was inappropriate for the warning sign.  The letter referred me to Cipriana Thompson, P.E., who agreed that with 10-ft lanes, “this is a use full lane situation.”  But the Department would not post R4-11 signs “because posting such a sign would imply that we endorse riding on this road, and we do not believe that people should ride bicycles on this road.”  Director Hijazi generally made the same points.  He recognizes that people ride these roads, but does not agree with WABA that this implies a duty to warn drivers.

DPW&T believes that signs and pavement markings increase its liability because doing so would imply endorsement of riding those roads.  Today, cyclists ride those roads at their own risk.  The County has never stated that all of its roads are part of the cycling transportation network.  Installing signs and pavement markings would in effect endorse biking on those roads, making the county liable.[4]

Both the University of Maryland and the City of Baltimore are already using the sign, with plans for more.  Laurel plans to use the R4-11 sign with sharrows. On the other hand, Harford County activist Jeff Springer doubts that his county will use the signs.  Most counties have not even thought about it. [5]

The variation of opinion among the localities is typical of many issues.  Yet I am struck by how the “old-school” state highway engineers have found a way to be comfortable moving forward on this issue, while their local counterparts have not.  Certainly the policy decision by Maryland’s Secretary of Transportation caused SHA to take a second look at the issue; but principals of traffic and safety—not political pressure—are what really brought their thinking around.  Many of the localities have traffic people with skills, backgrounds, and outlooks similar to Tom Hicks.  Rather than rushing the process of adopting guidance for R4-11, SHA should engage those localities to give as many of them as possible an opportunity to buy into the process and feel ownership in the final product.

We are not asking the highway departments to tell cyclists where to ride.  We are just asking for a warning sign that clearly tells drivers that cyclists may be using the full lane.  The limitations of the “[Bicycles] share the road” sign are palpable to anyone who takes the time to think about it.  Engaging SHA about a new sign could motivate several localities to actually take the time, and find merit in a sign that they would never use if it simply showed up as an option in the  MUTCD.

(Jim Titus is a member of WABA’s Board of Directors from Glenn Dale, Maryland in Prince Georges County)

Having asked you to contact Maryland officials about the State Highway Administration’s (SHA) decision to reject the Bicycles May Use Full Lane sign (R4-11), we wanted to give you an brief update on our progress to see that decision reversed.

As far as we know, everyone who wrote Governor O’Malley, the State Highway Administration or the the Maryland Department of Transportation (MDOT) received a letter from MDOT Secretary Beverly K. Swaim-Staley stating (in part)

Consistent with Governor O‘Malley’s policy initiatives to encourage bicycle use and accommodate bicyclists, MDOT and SHA will develop guidelines for the appropriate use of the R4-11 sign. As we previously agreed, the SHA will consult with stakeholders before adopting a final set of guidelines. I apologize that incorrect information was communicated prior to any formal decision.

The MDOT letter clearly implies that MDOT has not made a decision on the guidelines for the R4-11 sign. But it does not necessarily mean that MDOT has decided to actually use the sign, because the guidelines that states are allowed to issue under the Manual of Uniform Traffic Control Devices include the option of not using the sign or substantially changing it.

Last week I spoke with several officials with SHA and MDOT Headquarters. There is clearly a difference of opinion within these state agencies. MDOT’s Director for Bicycle and Pedestrian Affairs is a champion of the sign. SHA’s Office of Traffic and Safety—which usually decides such matters—originally rejected the sign and continues to oppose it. At about the same time that the MDOT letter was being sent, SHA officials reiterated that they had rejected the R4-11 sign as approved by the US Department of Transportation, though they are open to an alternative way to accomplish the same objective.

Usually, when there is an internal disagreement, MDOT defers to the judgment of its Office of Traffic and Safety. But in this case, the 625 emails that you sent have elevated the issue to senior management.  There is a reasonable chance that the decision will be made on its own merits, rather than as a matter of deference to the office that originally rejected the sign.

(Jim Titus is a member of WABA’s Board of Directors from Prince Georges County)

Every year along about this time, a driver in Montgomery County has to wait behind cyclists traveling more slowly than the driver would prefer to drive, on a road with a nearby trail. And then the driver prepares a radio commentary or circulates a letter asking why those cyclists are on the road instead of the trail.

In this year’s widely circulated letter, a driver wrote:

I am both a bicyclist and motorist. Jones Mill Road is extremely dangerous, I think we all agree to that. I have seen 2 car/bike accidents in the past 3 years. Even one is too much. But I see bicyclists with limited lighting and motorists putting on makeup, eating, talking on cell phones.

This road has just barely room for 2 cars to pass and any bicycle on the road halts traffic and causes danger to all, particularly during rush hour. Adding to motorists frustration is the fact that we just resurfaced the immediately adjacent hiker/biker trail and the bicyclists refuse to use it…. They already have a trail, why not use it and avoid all this danger…

I… see huge gaggles of 40-50 bicycles completely blocking the road–not courteous and definitely not sharing–arrogance again. But during weekdays and particularly during rush hours, I just see arrogance by the bicyclists, with no concern for sharing the road with cars. I see bicyclists in danger and frustrated motorists almost every bike day.

IS it right for the bicyclists to force sharing a non sharable road when they have a trail right there? … Perhaps we organize a campaign to put up road signs stating (no bicycles, use trail). Yes, I ride that trail on bicycle almost every Mon, Wed, Fri and Saturday and drive that road every weekday.

Michael Jackson, the director of bicycle and pedestrian access for the Maryland Department of Transportation (MDOT) provided a reply that hit on just about every aspect of this issue

Your concerns are commonly shared by many members of the public. However bicycling has a lot of counterintuitive truths.

Under Maryland law bicycles are vehicles and bicycle vehicle operators have generally the same rights and responsibilities as motor vehicle operators. Bicyclists are legally entitled to use most roadways in Maryland including Jones Mill Road. Toll roads, interstate highways and travel lanes with posted speed limits of 55 mph or higher are places where bicycling is prohibited…

Why Do Bicyclists Insist on Exercising Their Legal Right to Use Roadways Adjacent To Trails?

Another counterintuitive truth is that generally roadways are safer than trails. Trails have higher crash rates than roadways. While certainly a car/bike collision can lead to serious injuries and fatalities, unfortunately serious injuries and fatalities occur on trails. Bicyclists run into each other, run into fixed objects or simply lose control and fall.

Trails often cannot safely accommodate the speeds that skilled bicyclists can achieve due to relatively narrow widths, tight curves, limited sight distances and sometimes worse overall pavement conditions than adjacent roadways. Another complicating factor [is] the presence of pedestrians, including children, dog walkers, and less skilled bicyclists. Often these folks are less predictable in their movements than motorists. Common speed limits on trails are 15 mph, a speed easily exceeded by skilled bicyclists. However a cyclist rarely exceeds the legal speed limit on a roadway.

Finally roadways often provide a more direct route than the adjacent trails which have a tendency to meander. So due to improved safety, less hassle with pedestrian conflicts, higher speed limits and directness often bicyclists prefer roadways over adjacent trails…

Jones Mill Road Safety

You mentioned that you’ve seen two car/bike crashes (presumably on Jones Mill Road) in three years and that even one is too much. I assume the argument is that bicyclists should be banned from Jones Mill Road because of these crashes. If true than we would have to ban motoring as well, considering the 32,000 motor vehicle fatalities occurring annually, let alone the hundreds of thousands of injuries and collisions that occur nationally. Instead of taking that extreme step as a society we determine if motoring and bicycling are reasonable risks while we continue to work on improving safety.

Bicyclist Arrogance, Motorist Inattention and Road Rage

Often the public believes that bicyclists are mere trespassers on public highways who deserve whatever abuse they receive from motorists. This is not the case. Motorists have to understand that bicyclists have as much right to use Jones Mill Road as motorists have. Bicyclists must travel in a lawful and courteous manner in the name of roadway safety and reinforcing the image of bicyclists as legitimate roadway users.It is true that bicyclists often aggravate motorists by violating traffic laws, including unnecessarily impeding traffic when riding in groups. As you noticed motorists often engage in distracted driving and occasionally can be prone to fits of road rage. The common factor is that both bicyclists and motorists are human beings with all the faults that come with being human…. there are jerks behind the handlebars, jerks being the steering wheels and jerks afoot. However this does not raise the danger level to such a degree that we should ban bicycling or motoring.

Why does this issue arise so often? First, Maryland actually did have a law requiring the use of sidepaths from 1970-77. That provision was part of the Uniform Vehicle Code, portions of which have been adopted by most states. Second, although Maryland repealed the requirement fairly quickly, about 15 states still had it as late as 2005. Until 2007 the Virginia code authorized localities to require cyclists to ride on sidepaths. Someone who moves from another state to Maryland does not have to take a test on all the differences between their former state and Maryland laws, so unless the law is publicized, people tend to assume that the law is the same in Maryland as the state whence they came. Finally, the mandatory side path law fits neatly into a conceptual model shared by most drivers, most public officials, and even many cyclists: that public safety and common sense requires bikes to stay out of through lanes built mainly for drivers.

That’s probably true for small children and others still learning to share the road. First-time drivers probably do not belong on the beltway during rush hour either. The fact that many long-time drivers and public officials also do not understand what it means to share the road suggests that there is a serious gap in driver education.

Throughout Maryland, the state and local highway departments have installed more than one thousand signs that say ”[bicycle symbol] Share the Road.”   Clearly, many drivers believe that these signs are a directive to cyclists to share the road with automobiles by moving to the extreme right.  In fact, the signs are a warning to drivers that bicyclists are sharing the road.

But the main problem is that most drivers do not know what it means to share a narrow road.   A key principal of the Manual on Uniform Traffic Control Devices is that road signs should have a clear meaning, but it seems that to many, “Share the Road” signs do not have a clear meaning.   Given this lack of clarity most “Share the Road” signs on roads without shoulders should be replaced with the new (R4-11) signs that say “Bicycles may use full lane.”  No ambiguity there.

(Jim Titus is a member of WABA’s Board of Directors from Maryland)

Yesterday both houses of the Maryland General Assembly approved the amended House Bill 363, which creates a new crime of negligent homicide by vehicle or vessel. Passage of this bill culminates a 7-year effort led by Delegate Luiz Simmons (D-Rockville) and the families of victims killed by negligent drivers.

Under the existing law, drivers who kill have only been convicted of vehicular manslaughter if they were drunk, drag-racing, or clearly knew that their driving might kill someone. If the bill becomes law, a driver who should know that her driving could kill can be prosecuted for negligent homicide, with a maximum term of three years. The Governor has indicated that he will sign the bill.

We attribute the success this year primarily to the perseverence of Delegate Simmons and several people who dedicated themselves to ensuring that something good came out of the trajedy that befell them. We won’t try to name them all, but Adiva Sotzsky deserves credit for engaging the bicycle community. She and Ed Kohls simply would not give up.  Keniss Henry’s involvement added an extra degree of urgency to the matter within Prince Georges County after the death of her daughter Natasha Pettigrew, which is still under investigation. We also credit Senator Brian Frosh (D-Bethesda) for sharing his skepticism in a transparent fashion, which enabled proponents to address his concerns before the hearing in his committee.  Realistically, there would not have been time to address them after the hearing.  Bike Maryland and AAA have supported the effort for several years, prior to many Washington-area cyclists’ full engagement.

But with all of their great work, this bill still would not have passed this year had you, our members and supporters, not stepped forward. As always, you sent emails. But this time you also called your Senators—more than once in many cases. You asked your friends to call the key Senators—and they did. You handed flyers to people in public places and spoke with them about the importance of contacting their Senators. And they did. And the Senators got the message.  They spent enough time to learn enough to be confident in supporting this bill that arrived so late in the session. That is no small accomplishment because a responsible legislator does not create a new type of homicide lightly.

We can have no illusions that, by itself, making negligent homicide a crime will make our roads safe. Many forms of bad driving remain legal, many forms of illegal driving go unenforced, and many drivers are undeterred by enforcement. The subtext that enforcement is worse than the crime will continue in some places. But Maryland has removed the most offensive blemish of all from its transportation legal system—the idea that killing a human being has no legal consequence. Now it will.

(Jim Titus is a member of WABA’s Board of Directors from Prince Georges County)

Here is an explanation of the Senate Committee’s amendment to House Bill 363.

H.B. 363 is based on the Model Penal Code, a suggested criminal code developed by the American Law Institute.  Senator Brian Frosh (D–Montgomery) has consistently maintained that he is concerned that the proposed version of House Bill 363 might unintentionlly subject relatively ordinary behavior to criminal penalties. WABA’s testimony before his committee showed that the states that have enacted some variation of the Model Penal Code have only upheld convictions for egregious conduct resulting in death, not ordinary negligence. (Our testimony before the House focussed on the inadequacies of the existing law in Maryland.)

Mr. Frosh noticed that H.B. 363 used different adjectives than the Model Penal Code. The original version of House Bill 363 included the following language

SECTION 1…. § 210 (c). For purposes of this section, a person acts in a criminally negligent manner… when… (2) [t]he failure to perceive constitutes a substantial deviation from the standard of care that would be excercised by a reasonable person.

SECTION 2. AND BE IT FURTHER ENACTED, That it is the intent of the General Assembly that the term “substantial deviation from the standard of care” in § 2–210(c)(2) of the Criminal Law Article, as enacted by
Section 1 of this Act, be interpreted synonymously with the term “gross deviation from the standard of care” under § 2.02(2)(d) of the Model Penal Code of the American Law Institute.

After some negotiation, the Senate Committee changed one word:

SECTION 1…. § 210 (c). For purposes of this section, a person acts in a criminally negligent manner…when… (2) [t]he failure to perceive constitutes a substantial gross deviation from the standard of care that would
be excercised by a reasonable person.

Because Section 2 of the bill already defined “substantial deviation” as “gross deviation” this amendment does not seem to change the bill’s meaning. If the Senate passes the amended H.B. 363, then sponsors in the House should be able to explain that the Senate’s amendment is purely technical.

Maryland Residents: Please CLICK HERE to email your state senator expressing your support for House Bill 363, as amended.

Lead advocate Adiva Sotzsky was pleased with the hearing on House Bill 363 yesterday in the Senate Judicial Proceedings Committee.

Committee staff had previously told her that the public could only submit written testimony, and that the only oral presentation would be from Delegate Simmons, who sponsored the bill in the House. But the Chairman made time for all who had submitted written testimony to make an oral presentation. It was clear from the questions that the Senators asked that they were reading the written testimony. Senator Christopher Shank (R-Washington) for example, mentioned the table of court cases in the WABA testimony.

A favorable hearing does not, however, mean favorable action. The General Assembly’s web site shows that the committee passed 7 bills last night, and amended another 7 bills. But the Committee took no action on House Bill 363.

WABA’s testimony for today’s hearing in the Senate on House Bill 363 is two paragraphs plus the table of  32 cases I mentioned last Friday:

The Chairman of this Committee has raised an important question:  Is the “substantial deviation” standard in House Bill 363 an appropriate standard for criminal liability?  As with all standards of care, juries must apply this standard to facts that vary from case to case.  Judges must review their results to ensure a consistent application.  In the states that have already adopted the substantial deviation standard, minor mistakes and momentary lapses in attentiveness have not resulted in criminal convictions.

The table below summarizes appellate cases applying this standard from eight of those states.  (We reviewed hundreds of cases; but the table omits cases involving intoxication, because all states uphold such convictions).  The table shows that courts have upheld convictions for extremely egregious conduct that would not be manslaughter in Maryland today, such as running a stop sign at full speed or repeatedly crossing a double yellow line.  But juries have rarely convicted for mere inattention or a fleeting lapse in the exercise of due care, and the few times they did, the convictions were reversed.  We found no case of a conviction even at the trial court level for accidents resulting from garden variety negligence.

We took the Chairman’s comments to the media at face value: that he understands that drivers who kill never go to jail, but that he is unclear whether the proposed law would go too far in the other direction, and he needs to be convinced–but he has an open mind.

(Jim Titus is a member of the WABA Board of Directors from Prince Georges County)

Thanks to the WABA members, WABA staff, Bike Maryland,  AAA, Baltimore Spokes, Adiva, and others for all of your work on HB 363. Our initial elation of finally passing the bill in the House of Delegates quickly gave way to apprehension that getting the bill through the Senate Judicial Proceedings Committee this year is an uphill battle because there is so little time. Your efforts this week have persuaded a couple of Senators who were initially undecided. But Committee Chairman Brian Frosh (D-Bethesda) is skeptical.

Fortunately, Senator Frosh has been very open and transparent about his skepticism, making it possible for us to at least try to address his concerns. Right now, someone can only be convicted of vehicular manslaughter if they know that their driving creates a substantial risk of killing someone; under the Model Penal Code standard (which H.B 363 adopts), one could be convicted of negligent homicide if they should know the driving had a substantial risk of killing someone.  Last Wednesday’s Washington Post had the following account:

To Frosh, that new standard could be applied to the mother who fatally hits a bicyclist when she takes a glance at a crying child in the back seat of her minivan.

“When moments of inattention can kill somebody, that’s a terrible thing,” Frosh said. “You can lose your house, your job, you can lose everything you own in a civil suit, but do we want to send that mother to jail.”

I’ve read a few hundred cases on negligent homicide in 8 states that have adopted the Model Penal Code standard over the last several days, to see whether there is a basis for this concern. I am making a table (complete for 4 states so far) that shows the facts that do and do not result in a conviction for those states. That table footnotes the supporting case law. It may end up as part of written testimony we submit. I’ll keep inserting new versions of that table.

The Post also reported:

To thread the needle to Frosh’s satisfaction, the bill’s advocates need to define “precisely what their target is.”

Will that hypothetical lady in the minivan who looks back into a car seat and kills a cyclist be guilty of negligent homicide? From the case law I have read so far it depends on what else was going on. Here are a few examples. Under existing law, she would not be guilty in any of these cases.

1. If she was driving 30 mph over the limit, or in a bike lane, or cruising down a shoulder to pass a line of cars–and then looks back at her child and hits a cyclist: probably guilty.
2. If she sees the cyclist ahead, and then looks back at her child and hits the cyclist: probably guilty.
3. If there is a stop sign ahead that is clearly visible, and she looks back at her child and runs the stop sign and hits a cyclist: probably guilty.
4. If the road ahead is clear, and she looks back at her child for 2 seconds during which time a cyclist enters the road and she hits him: not guilty.
5. If the road ahead is clear and she looks back at her child, a cyclist enters the road, she crosses the double yellow line, and hits the cyclist: not guilty.
6. If she runs a red light just barely before it turns green and hits a cyclist in the intersection after it turns green: not guilty.
7. If she loses control of her vehicle while driving 70 mph through a safe-turn 45 mph sign when the speed limit is 55 mph: not guilty
8. If the road ahead is not clear, and she accidentally crosses the double yellow line and hits a cyclist who was plainly visible before she looked back at her child: not guilty in New Hampshire; guilty in Arkansas (if she is a professional minivan driver). So other states could go either way, and even Arkansas might reverse the conviction for a nonprofessional driver.

(I am assuming here that she invokes her right to remain silent and no passengers testify against her. Passengers saying that they warned her against something that she did will hurt her case–maybe the passengers should help with the child.)

A few decades of case law from the states that already have a law like H.B. 363 shows that the term “substantial risk of death” does not apply to the necessary day-to-day activities in which people engage, so those activities could not be a cause for negligent homicide.

If you know of any other possible fact patterns that concern Senator Frosh (or any other Maryland Senator) please let us know and we’ll see if we can find a case that is at least generally on point.

(Jim Titus is a member of WABA’s Board of Directors from Prince Georges County)