In the past 18 months, our community has had five pedestrian and bicycle deaths as well as a number of serious injuries. This is a sharp increase over the past. Inattentiveness, carelessness, or reckless disregard on the part of the vehicle driver was responsible for at least four deaths. There has been a 150% increase in bicycle deaths and a 63% increase in pedestrian deaths comparing 10 year periods with only about a 10% increase in population (see graphic below). This is not acceptable. This is not acceptable when walking and bicycling are increasingly popular activities during a pandemic. For everyone’s health, we need to continue to encourage outdoor recreation after the pandemic is over, making appropriate changes to our environment and driving culture.
Graphic by Audrey Ishii.
These recent deaths have led to serious discussion about what to do and what action to take. In the past, the State’s Attorney’s Office has slapped the wrists of those killing vulnerable users claiming no ability to make a serious charge, typically an easily paid ticket. Given a newer law, she now has an opportunity to send a clear message to the driving public by taking serious action in the deaths of the two recent Mahomet bicyclists. The only way to change some folks’ behavior is via potential consequences of the legal system.
In the role of bicycle advocate and Licensed Cycling Instructor, I work to promote safety. I don’t speak for the victims’ families, nor have I any endorsement from them. The News-Gazette has had multiple stories related to each death.
Via a petition on Change.org, over 1,800 people have asked the State’s Attorney to protect the public from careless and reckless driving by prosecuting offenders to the fullest extent of the law. A series of emails and public comments that blamed the victims motivated me to better understand existing law. The victims, be they bicyclists or pedestrians, should not be blamed when they are legally using the roadway. The public deserves enforcement of their legal right to use the roadway.
Bicycles are considered legal vehicular users of the roadway. Drivers need to be patient and learn to share the road safely, treat bicycles no less than another car, and minimize the dangers to vulnerable road users.
In Illinois, “traffic laws apply to persons riding bicycles. Bicyclists riding on a highway are granted all of the rights (including right-of-way Article IX) and are subject to all of the duties applicable to the driver of a vehicle, with certain exceptions [ILCS 5/11-1502]”.
Lane positioning when using the roadways is also regulated:
“When riding on roadways and bicycle paths at less than normal traffic speed, ride as close as practicable and safe to the righthand curb or edge of roadway except:
- When overtaking and passing another bicycle or vehicle proceeding in the same direction.
- When preparing for a left turn.
- When reasonably necessary to avoid fixed or moving objects, parked or moving vehicles, bicycles, motorized pedal cycles, pedestrians, animals, surface hazards or substandard width lanes that make it unsafe to continue along the right-hand curb or edge. A “substandard width lane” means a lane that is too narrow for a bicycle and a vehicle to travel safely side by side within the lane.
- When approaching a place where a right turn is authorized.
- When riding on a one-way highway with two or more marked traffic lanes. Here, bicyclists may ride as near the left-hand curb or edge of such roadway as practicable [5/11-1505]”.
Further, bicyclists are allowed to ride two abreast as long as traffic isn’t impeded, should use hand signals whenever possible, are allowed to use the sidewalk (with the rights and duties of pedestrians) unless prohibited by local ordinance, and ride in shoulders, among other things. The Illinois Vehicle Code (a useful reference starting from here) governs most vehicle activity on the roadway and a relevant bit for motorists is from (625 ILCS 5/11-706): “…(a) No vehicle shall be driven on the left side of the roadway under the following conditions: … 2. When approaching within 100 feet of or traversing any intersection or railroad grade crossing.” I will note that the driving public regularly pass me when bicycling at or near intersections, typically twice a week, and twice today.
Unlike extensive DUI laws, only 10 states have clear and comprehensive vulnerable user laws. Illinois is not one of these but has one particular statute applicable to bicyclists and other vulnerable users, the 3-foot passing law (Chapter 625, 11-703, Overtaking a vehicle on the left). In particular paragraphs d, e, and f: (d) The operator of a motor vehicle overtaking a bicycle or individual proceeding in the same direction on a highway shall leave a safe distance, but not less than 3 feet, when passing the bicycle or individual and shall maintain that distance until safely past the overtaken bicycle or individual; (e) A person driving a motor vehicle shall not, in a reckless manner, drive the motor vehicle unnecessarily close to, toward, or near a bicyclist, pedestrian, or a person riding a horse or driving an animal drawn vehicle; (f) Every person convicted of paragraph (e) of this Section shall be guilty of a Class A misdemeanor if the violation does not result in great bodily harm or permanent disability or disfigurement to another. If the violation results in great bodily harm or permanent disability or disfigurement to another, the person shall be guilty of a Class 3 felony.
I reviewed the traffic report concerning the death of bicyclist David Powell (Illinois State Police Crash Report A10-20-00290), and the statements as made by (and recorded on video) by the semi driver, Mr. Roman Sydoruk. He has a scheduled bench trial later this month. I understand there are aspects of this case that have been redacted from the FOIA response and that the State’s Attorney has limited resources and lots of pressing issues to balance. However, this case is different from the Matt Wilhelm and Combes family cases from years past when drivers claimed to not see the bicyclist because of distractions. The semi driver stated he saw the bicyclist, had nearly 800 feet to act safely, yet attempted to pass instead of slowing down. He’s only been charged with passing in an intersection. I do not understand why the three-foot passing law can’t be cited because this is a situation acknowledging seeing the bicyclist in time to respond. Clearly, the statute (11-703) could be better and it is relatively new but I believe that the law is clear enough. If a vehicle driver sees a bicyclist and chooses to execute a pass, the driver needs to do so legally and provide at least 3 feet. Doing otherwise, when having plenty of time to assess and make appropriate decisions, is choosing to do so in a “reckless manner”. Passing, whether legal, illegally, and/or under risky conditions is a conscious decision. When it endangers the life of other road users it is a crime that occurs before the “accident” just as drinking before driving. The semi-truck driver should have slowed down and waited for the bicyclist to make his legally permitted left-hand turn.
If this statute is not enforced it becomes meaningless as a serious deterrent. However, the vast majority of vehicle drivers abide by it and most even change lanes to pass, the recommended action to pass any vehicle (if this is your behavior when driving, thank you!). Paragraph (d) could be used and by itself, is a petty offense if no injury occurs. It should be applied if it can be shown that a vehicle passed inside of 3 feet (as evidenced via video or witness whether or not a crash occurred). Note that Paragraph (d) refers to safety. Paragraph (f) notes the consequences of (e) but uses the word reckless, not “safe”, and does not refer to (d). Herein lies the problem. I have consulted Brendan Kevenides, an attorney with a bicycle focused practice (Freeman Kevenides Law Firm) and fellow Licensed Cycling Instructor about this case, and shared with him my thoughts and the traffic report. He also agreed to allow me to use his response noting a quick take of this sad situation:
“I think that the State’s Attorney probably could and should seek prosecution under Illinois’s Vulnerable Road User Statute, 625 ILCS 5/11-703. However, this case highlights a problem with the way the statute was drafted that has likely caused the SA to be hesitant.
Please understand that negligence and recklessness have legal definitions that may not comport with common usage of those terms. Negligence is a failure to act as an ordinarily reasonable person would under the same or similar circumstances. Based on what I’ve read of this case, the truck driver’s conduct was undoubtedly negligent. Recklessness is a willful and wanton disregard for the safety of others. The classic law school example is firing a gun into a crowd of people without the intent to actually harm anyone. In this hypothetical, the shooter may not desire or wish to hurt anyone but should know that their conduct will likely cause great harm. Under the common law, the driver’s conduct does not rise to the level of recklessness. The driver was apparently trying to pass, as evidenced by his partial lane change. He did not just drive straight into Mr. Powell. However, we have 11-703 which supersedes the common law and describes what is required to pass a bicyclist safely; that is, leaving at least 3 feet of space. That requirement is found in subparagraph (d). Subparagraph (f) states that if a violation results in great bodily harm or death that the violator shall be guilty of a class 3 felony. BUT, subparagraph (f) relates not to subparagraph (d), but instead to subparagraph (e). That subparagraph states in pertinent part that, “A person driving a motor vehicle shall not, in a reckless manner, drive the motor vehicle unnecessarily close to … a bicyclist.” [emphasis mine]. So, the felony charge must arise from reckless conduct. The problem is that the statute as drafted does not neatly and clearly tie sub paragraphs (d)(e) and (f). The state’s attorney perhaps saw the word “reckless” in sub (e) and determined that that requirement doesn’t allow for a felony charge under (f). I would make the case that (d) describes what is “reckless” under (e). In other words, if a driver passes a cyclist inside of 3 feet then they acted recklessly. In fairness to the SA, the statute does not explicitly state that this was the legislature’s intent when the statute was drafted. The statute’s failure in this regard is likely contributing to the SA’s reluctance. This should be fixed in the IL legislature. Still, she should appreciate that the entire statute must be read and considered as a whole, not just a group of unconnected paragraphs.”
As a vehicle driver, I appreciate the distinction and use of negligence versus recklessness, we all make mistakes. However, if this were a family killed in a vehicle given the circumstances would the charges be the same and would that professional driver still be on the road after being in court? Drivers should be charged under the 3-foot passing law allowing a judge and jury to make a final decision – if this were a DUI situation, there would be serious consequences but that is my point, consciously passing a bicyclist is comparable to drinking before driving. In the second recent bicyclist death, a driver with a history of 11 speeding violations, has been arrested. A hit and run is a felony making this case a slam dunk but why was this person still on the road in the first place? Again, if possible, this driver should also be charged with violation of the 3-foot passing law. Illinois sentencing guidelines (730 ILCS 5/5-5-3.2(a)(7) state: “the sentence is necessary to deter others from committing the same crime.” If the State’s Attorney doesn’t charge the crime then a judge and jury can’t make this determination. Ultimately, what can be done to make sure certain drivers are kept off the road until they can drive safely or never drive again?
Annually, roadway crashes claim 1.3 million deaths worldwide, half of them vulnerable users. In Champaign County, bicycle and pedestrian deaths have increased from 23 over the 10 years between 1999-2008 to 41 in the 10 years between 2009-2018 while population has only increased about 10%. As a percentage of total traffic deaths in the County, the death rate has more than doubled. There is a world-wide movement called Vision Zero that sets as a goal zero serious injuries and deaths of ALL roadway users. Some local agencies and the City of Urbana have adopted this as policy.
The next steps that individuals can take are to:
- Encourage local law enforcement to enforce the three-foot passing law by issuing tickets and making charges: paragraph (d) can be cited by itself as a traffic citation and is a petty offense;
- Encourage state officials to clarify provisions of the three-foot law so that there is no question about its use or meaning and to develop a more extensive vulnerable user law; and
- Encourage local officials to adopt and implement Vision Zero.
As a reminder to all, please follow the rules of the road whether you are driving, biking or walking. Use good lighting at night and make yourself as visible as possible day or night. Above all, we ask vehicle drivers to slow down – crashes can be avoided by taking time to check.
Whether you are a casual or regular bicyclist, a pedestrian, ride a horse, or drive a farm vehicle or buggy, you deserve to treated as a respected and expected user of the roadway per Illinois law. Our local State’s Attorney, the Secretary of State, and the criminal justice system all have a role in protecting your right to use the roadway free from traffic violence. We should accept nothing less.