Tuesday, February 16, 2010

Sometimes Motorists Do the Darndest Things



After writing my friends phone number on my left arm*, I had to deal with one of the complications that my bicycle set-up causes. With the unusually heavy snowfall in the local region, I had a little trouble getting onto the road that attaches to my driveway so I could resume impeding traffic.

I have chosen to equip both of my bicycles with a speedplay pedal and cleat system. One of the characteristic features of this system is that it is intolerant of mud, packed snow, ice, sand and gravel. These pedals are a particularly poor choice for the cyclocross crowd.

Now, when I chose them, I could think of no reason to have to walk in them- certainly not once I got underway! Ah, yes, those were the days!

With the wet season in full force, I normally have negotiate 200 feet across the lawn from the door to the driveway that is mud, muddy and swampy. I have an old set of sneakers that have the singular purpose of delivering me with dry feet onto my driveway. Whereupon I remove them and put on my cycling shoes, and they await my return.

Today, (Friday February 12) however, I faced a 50 yard walk in twelve inches of snow. This was the heavy wet kind you Yankees seem so familiar with, not the dry blowsy kind that passes before the residents up in Montana and Wyoming while on it’s way to Nebraska. If I wore those faithful sneakers, I would have to take a towel to dry my feet before donning socks and cycling shoes. All the while standing on one foot, perhaps on the roadway. Yes, it would’ve been ugly.

So I slogged out to the streets with these boots on. Switched shoes and I was on my way. Oh, and I put the boots in a plastic bag to protect them from automobile spray.

This is a trade-off for my style of cycling. I find it acceptable.

Why I want to town

Today I viewed the Ennis Police stop dash cam videos and some of the audio that was recorded on them. (today = Friday February 12)

I’m glad I did. I found that my demeanor was not nearly as combative as I had feared. My contemporaneous recollections of our conversations are more accurate than I thought they were. I was striving for accuracy in all of my descriptions of the events and so I am pleased.

When Officer Watson stopped me in town, on October first, I saw that I had forgotten part of it. While Officer Watson and Sgt. Pillow discussed the ins and outs on impeding traffic, I was looking for identifying marks on the police car to write down, pen and paper in hand. Suddenly you can see a light go on in my head as I remember that I have my camera with me! And even with me looking the police car over so carefully, I never did notice Sgt. Pillow!

Yosemite Sam

One aspect of the dash cam footage that interested me was how soon I could be observed from traffic coming up behind me.

So when Officer Hudson comes up on me, on the dash cam there is no me to be seen! There is this old pickup protectively trailing behind me with his hazards on! Yikes!

It’s the fella who was hopping up and down, warning me that the long arm of the law would soon put an end to my scofflaw ways, or something similar.

Now, in my opinion, he did something incredibly dangerous and stupid!

Part of what makes a bicycle driver safe from being “runned over” is our distinctive silhouette. Everyone who sees it knows instantaneously that the cyclist is moving at a “slow speed”. I operate in the most annoying lane position I can precisely so that I will be seen and identified as a slow moving driver at the earliest possible instant. I want to afford the motorist the maximum time to access his options, decide early to merge, and go around me. In the vast majority of the time, motorists flow around the slow vehicle without hesitation and without the slightest of delays.

But for a distracted driver, making a quick scan ahead every four or five seconds, they rarely notice that they are quickly closing the gap between them and a slow vehicle when the slow vehicle is an automobile. In a quick glance, our minds assume the automobile is proceeding down the road at approximately the same speed we are. We have been trained for that by endless repetition.

Thus, I believe this “good Samaritan” was in grave peril, just as he felt about me.

Keri Nailed It

“The culture of speed causes some police to enforce
traffic flow vs safety. Worse, they often don’t even realize that their concepts of protecting safety are stealthy manifestations of traffic flow management. (i.e. the notion that speed differentials and lane changes cause safety problems resulting from the presence of a slow vehicle rather than the incompetent or aggressive behavior of faster drivers)”

The language and concepts Officer Hudson spoke to me about precisely reflects this idea that the problem is my presence, not the competency of the motorists. I believe he was genuinely concerned about my safety. But while he had watched me drive by him earlier that day on Hwy 287, he failed to observe how traffic operated around me.

He said many 911 callers said there were many close calls and near wrecks. Did he observe any? It doesn’t matter, these reports validated his bias of how the situation would play out.

Perhaps he will watch how fast traffic behaves around an obviously slow moving driver tonight. Perhaps he will listen enough to hear why traffic behaves as it does.




*You can thank SteveA for the precise description.

26 comments:

  1. It was the driver following you who was impeding traffic!

    I've seen this phenomenon in videos. Traffic flows freely as drivers in the right lane are looking down the road, seeing me from a distance and changing lanes. In the HWY 535 video motorists change lanes so far back, you can't even see them do it. I know they started in the right lane because I was behind them in my car.

    But one nitwit driving driving 5 feet from the end of his nose will end up not being able to merge and have to slow and wait a few seconds. Then all the drivers behind him end up having to wait too because they can't see the cyclist and are caught in the right lane off guard.

    I don't consider this a safety issue for me, but it sometimes results in incivility toward me as they pass.

    Best wishes tonight. I'm thinking about you and awaiting a report.

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  2. Hi Chipseal,

    I was just 'turned onto' your plight (from R.W.), and if it isn't over already (seems late from what I read) I think that Keri makes a valid point.

    If the pick'em-up truck was actually the 'impeder', you could subpoena him as... (I forget) either a 'cross-claim' or 'joinder'

    Start here:
    http://en.wikipedia.org/wiki/Lawsuit
    (look for those sections)

    If the dash cam shows that Pick'em-up guy had ample opportunity to pass you, and didn't (while he harassed you?), it seems that your case should be (sigh: but I realize you're in TX) thrown out, and P'e-g should be the one standing trial. (unless he's the cop or judge's best buddy)

    R.W. knows me well through 'WADAwatch', one of my two blogs.

    Good luck!
    Ww aka ZENmud

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  3. Convincing a jury that a 15-20 mph cyclist is not impeding traffic on a highway with 50+ mph traffic is going to be very, very difficult, even if it has two lanes in the given direction. But the whole point of Trotwood v Selz is that a cyclist (or any driver of a slow moving vehicle traveling as fast and safe as he reasonably can) cannot be in violation of the impeding law. Please see: http://velonews.competitor.com/2006/04/news/legally-speaking-with-bob-mionske-to-impede-or-not-to-impede-that-is-the-question_9772 (search for Trotwood).

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  4. I thank you for that post (Trotwood), good lawyering is a rare treasure! (for the good guys). Hopefully, TX' statute fits the mold...

    ZEN aka WADAwatch

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  5. What you're doing is huge and should have national attention. Its magnitude alone does not guarantee that it will be seen. Many enormous and fundamental things, like geological formations, only poke a little into our visible world. But your assertion of cyclist rights in this supremely rational fashion addresses the problem of traffic cyclists everywhere in this country (and probably in many others. Humans are essentially predators. They take advantage of whatever assets they have available to move through their environment and hunt and gather. To most people the automobile has become an unquestioned extension of their bodies. Why would anyone do it differently? Only a scrap of open mind lets many of them consider that some sweaty deviant fitness freak might choose to move under muscle power alone. The opening in that mind shuts abruptly when the sweaty freak starts to get in the way too much.

    The absorption of motor mentality is a clear example of "just because you can doesn't mean you should." Clearly the culture of speed has facilitated our impatience with each other. That impatience has become an accepted norm. Not hassling the cyclist becomes an act of charity rather than simply a normal part of getting from place to place in a congenial flow of mixed traffic.

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  6. Reed,

    I've remained silent on your plight until now, but thought I might share some thoughts in the hope they will help you win on appeal (and maybe help in Ellis County). I'm sure you've reviewed all the same laws, but sometimes it's good to see alternate interpretations so that you can effectively argue against them. To see the whole law, go to the link where the section is cited. I only included sections relevant to the discussion.


    http://www.statutes.legis.state.tx.us/Docs/TN/htm/TN.545.htm#545.051
    545.051. DRIVING ON RIGHT SIDE OF ROADWAY. (b) An operator of a vehicle on a roadway moving more slowly than the normal speed of other vehicles at the time and place under the existing conditions shall drive in the right-hand lane available for vehicles, or as close as practicable to the right-hand curb or edge of the roadway

    Note that it says, "shall drive in the right-hand lane available for vehicles". In the case of a bicycle, the shoulder is available to bicycles for travel and may (or may not) be considered to be a traffic lane as far as a bicycle vehicle is concerned.


    http://www.statutes.legis.state.tx.us/Docs/TN/htm/TN.545.htm#545.058
    545.058. DRIVING ON IMPROVED SHOULDER. (a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only:

    (5) to allow another vehicle traveling faster to pass


    (c) A limitation in this section on driving on an improved shoulder does not apply to:

    (3) a bicycle.

    I'm not sure why Steve A said over on his blog that farm tractors or slow pickups or whatever are not allowed to drive on the shoulder, because from this statute it is clear that they are. Bicycles also are allowed to travel on the shoulder, both as slow moving vehicles and as a bicycle.


    http://www.statutes.legis.state.tx.us/Docs/TN/htm/TN.545.htm#545.363
    545.363. MINIMUM SPEED REGULATIONS. (a) An operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.

    (b) When the Texas Transportation Commission, the Texas Turnpike Authority, the commissioners court of a county, or the governing body of a municipality, within the jurisdiction of each, as applicable, as specified in Sections 545.353 to 545.357, determines from the results of an engineering and traffic investigation that slow speeds on a part of a highway consistently impede the normal and reasonable movement of traffic, the commission, authority, county commissioners court, or governing body may determine and declare a minimum speed limit on the highway.

    (c) If appropriate signs are erected giving notice of a minimum speed limit adopted under this section, an operator may not drive a vehicle more slowly than that limit except as necessary for safe operation or in compliance with law.

    Section (a) doesn't look so good for you. However, a hard definition of "normal and reasonable flow of traffic" is not provided. Also, "safe operation" of a bicycle would, in fact, be at a rate much less than that of a car. Sections (b) and (c), however, look promising; they state that if a minimum speed is required to avoide "consistently imped(ing) the normal and reasonable movement of traffic", specified authorities can declare (section b) and give notice (section c) that a minimum speed limit is in place.


    http://www.statutes.legis.state.tx.us/Docs/TN/htm/TN.551.htm#551.101
    551.101. RIGHTS AND DUTIES. (a) A person operating a bicycle has the rights and duties applicable to a driver operating a vehicle under this subtitle, unless:

    (1) a provision of this chapter alters a right or duty; or

    (2) a right or duty applicable to a driver operating a vehicle cannot by its nature apply to a person operating a bicycle.

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  7. (continued)

    So... a cyclist has the duty to not impede traffic as defined in 545.363 above. If a shoulder is available, it can be used by a cyclist to avoid impeding traffic.

    I see your cases as boiling down to a couple of points: First, if a shoulder was available, you could reasonably be expected to use it so as to not impede faster motorized traffic. However, on roads without an improved shoulder, you do not have this option available to you so taking the lane, it could be argued, is a reasonable approach.

    Secondly, were you in fact impeding traffic? If cars had enough room to pass you without bunching up behind you, you can argue that no impeding was taking place, even if you were traveling slowly enough to impede. Basically impeding takes two parties: The impeder and the impedee. If there is no one to impede, you cannot be impeding anyone. So even if you were riding slowly enough, and out in the lane enough, to impede traffic, there is no impeding taking place unless someone is actually stuck behind you.

    Now, given these views, I think a jury could still reasonably find you guilty of one or more counts. But I think it would be wise to examine each case and explain why you do not feel you were impeding traffic.

    Most of the views expressed here and in the blogosphere are very sympathetic with your situation. Frankly, if you are unable to get these charges dismissed, I wonder whether my own riding style might be considered in violation of the law, so I have an interest in your success as well. But as someone who still drives, I would expect that if I came up on a cyclist in the road and there was a broad enough, clear shoulder, that the cyclist would take the shoulder and allow me to pass. My readings of the law seem to back that up, and there are a few points in the law where there just isn’t a clear-cut criteria to say either way whether you broke it or not, which means at this point it’s up to the court system.

    Anyway, think about this. If you’re going to beat these tickets, I think you are going to have to do it in terms that drivers can understand and agree with. As cyclists, we tend to interpret the law with a bias favorable toward cycling. But you need to form your arguments according to the interpretations that will be made by the judge or jury.

    That said, while I don’t think it’s a slam dunk to get out of these tickets, I think it is possible. On the other hand, if you cannot get the tickets thrown out, I don’t think it necessarily means that you can no longer use your bicycle for transportation in your area, but you may have to modify your riding style, despite what you feel your rights are under your own interpretation of the law.

    Good luck, friend.

    Paul H.

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  8. Steve made that assertion on his blog because he is easily confused. It is necessary to be wrong on occasion in order to avoid becoming conceited.

    OTOH, while I agree entirely with much of Doohickie's analysis, I think there are a few important factors missing from it. Rather than a long and boring comment, I'll make a long and boring post.

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  9. Nothing in anything Doohikie cited or analyzed indicates that bicycling in a shoulder should EVER by legally REQUIRED.

    Saying 545.363. (a) "does not look good for you" can only be said by someone who does not fully appreciate the clearly-established-by-legislation right of bicyclists to ride on roadways (which does not include shoulder) in Texas.

    You cannot be faulted for going too slow if the only remedy is to get off the road (including in the shoulder), for that violates your right to be in the road!

    "if a shoulder was available, you could reasonably be expected to use it so as to not impede faster motorized traffic."

    "Reasonably be expected" to ride in the shoulder? Maybe. But that's a far cry from legally required.

    "you can argue that no impeding was taking place"
    That's a semantic argument doomed to fail. Almost no one is going to accept that traveling at 15 mph does not impede 50 mph traffic. Of course it does. The question is whether that impeding is justified or not. Which gets back to seeing how it could be remedied. Since the only way to remedy it is to violate his clear right to travel on the roadway, it must be justified impeding.

    I agree on the good luck part.

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  10. The violation of impeding is committed when someone is going so slow as to impede others and which can be avoided by going faster. It does not apply to someone who cannot go any faster.

    The impeding statute does not require anyone to get off the road in order to comply.

    That's a complete and utter misapplication of the statute.

    Same goes for "obstruction".

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  11. I wish you were right, PP, but we have to remember that almost all the decision makers in enforcement and in the courts share a decidedly different perspective and leanings that do no include sympathies toward cyclists.

    And even though other slow-moving vehicles (farm tractors, etc.) have the right to use the road, they can similarly be given tickets for impeding traffic if they do not move over to the shoulder.

    Like it or not, that's just how the world works.

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  12. "Reasonably be expected" to ride in the shoulder? Maybe. But that's a far cry from legally required.

    Actually, yeah, legally required. A bicycle has all the rights and duties of other vehicles. One of those duties is this statute:

    An operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.

    Since "normal and reasonable movement of traffic" is decided by a judge or jury that most likely drives everywhere and considers a bike a part of a fading memory from childhood, that nebulous term will be decided almost every time against a cyclist. And the part about safe operation is also a matter of perception and opinion that goes against the cyclist too. There are two nebulous terms in there that mean one thing to cyclists and something else to the vast majority of the population. And since it is not written explicitly in the law, guess what? Majority rules.

    Knowing the how Reed values principles, I expect he will appeal and try to establish what he views as his rights. There is a real chance that he will lose his appeal. It may come down to this: If he wants to continue to use his bicycle for transportation in Ennis, he may need to sit down with the chief of police or the judge to come to an agreement on these definitions that allows his continued use of the roadways. But I think in order to do that, some compromise may be required that involves riding on shoulders.

    But that's getting ahead of the story. If he wins on appeal, that scenario becomes moot.

    I know what's at stake for you, Reed, and I hope things will be resolved in your favor.

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  13. Doohickie, I'm simply repeating the interpretation established by autoritative judicial opinion. Are you familiar with Trotwood v. Selz?

    It is true that ignorant and anti-bike biased cops, jurors and lower court judges don't understand this, but they're not the ones who establish legal meaning.

    It's a shame this has to get to the appellate level for the appropriate big picture view to be taken, but that's how it is. If Chipseal loses at the appellate level, which would be shocking, that sets up a supreme court case because of conflicting interpretations at the appeal level.

    Read Trotwood v. Selz and you'll get it.

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  14. Appellate? I understand we'll simply have "Son of State vs Chip."

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  15. I meant eventually. I am assuming that appelate level is more likely to have the wisdom to appreciate and apply judicial interpretation and legal reasoning of Trotwood et al than are lower courts.

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  16. Doohickie asserts that bicycling in the shoulder is legally required, and cites the impeding law as if this wording makes it self-evident:

    An operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.

    I agree that a typical (low level) judge and jury might understand this law to mean that for bicyclists, but that's only in states where that interpretation has not been challenged in appellate court. I know of only two states where such an interpretation has been challenged on appeal (many states have a similar law worded almost identically), Georgia and Ohio, and in both cases the appellate court ruled that someone who has a right to be in the roadway (which bicyclists clearly do, even in Texas, by legislative intent) cannot be in violation of law because of going too slowly if they are going as fast as they reasonably can. It should be noted that in most states this law does not apply to bicyclists because it specifically prohibits only drivers of motor vehicles from going so slow as to impede others. The Ohio law, like the Texas one, is not specific to bicyclists, but it was ruled not to apply to them (or any slow driver) who is traveling as fast as he reasonably can.

    In other words, it's generally illegal to drive a Corvette down the highway at 15 mph. However, if you're doing that because a mechanical issue has reduced the engine power such that 15 mph is the fastest possible speed, any impeding that is caused by going so slowly is justified and not illegal.

    Until the interpretation that this law means bicyclists must ride in the shoulder is challenged in appellate court, no one really knows what it means, and so low level courts are able to continue to apply their (biased) interpretations.

    That's why it's crucial that this be challenged so it can be clarified in case law in Texas.

    "We conclude that a bicyclist is not in violation of [the law prohibiting impeding traffic] when he is traveling as fast as he reasonably can. - Second Appellate District of Ohio, case no. CA 18207, Trotwood v. Selz

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  17. Actually, this whole thing seems rather peculiar. The appeal process consists of an entire retrial. Rather than an appeal, if the defendant has enough money, the preferred approach would be to just keep retrying until he wins one time.

    I agree with PP that the interpretation that shoulder riding is mandatory is not consistent with the body of the laws, nor with precedent established in appeal courts. It would be preferable all around if appeals were not necessary to achieve that result. I surely wish cycling advocates would run with that idea in preference to entirely new laws such as the current three foot laws that seem to be the current fashion.

    Had the Texas impeding law stated "motor vehicles," there would have been no trial on THAT charge at all. Not to say they might not have come up with some other charge.

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  18. I suspect that the "retrial" appeal is just how the first step in the appeals process is done. What if that is lost? Are you saying the only recourse is another retrial, ad infinitum? That can't be right. At some point you have to get to a real appeals court.

    Clarifying how law needs to be interpreted in particular kinds of cases is exactly what the appeals process is for. It's a good thing. It's why cyclists in Ohio can't be cited for impeding. Though I agree having the impeding law explicitly apply only to motor vehicle drivers would be best.

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  19. And I do wonder what other charge they might come up with, since the narrow lane exception in the Texas version of the far right law explicitly excludes lanes that are narrower than 14 feet (and this one was narrower), and I assume the general slow moving rule simply restricts slow movers to the rightmost lane (where he was riding) as it does in other states.

    The obstruction charge is what popped up when they spun the codebook roulette wheel in the other case, but that fails to apply to bicyclists by the same legal reasoning.

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  20. "the interpretation that shoulder riding is mandatory is not consistent with the body of the laws, nor with precedent established in appeal courts."

    Yes, but, just to be clear, there has been no precedent set that any courts in Texas are required to follow with respect to this question. You would think you could file a question to the courts, "Hey guys, how about clarifying this ambiguous legal situation?", but the only way to get them to act is to appeal a case in which one feels one was wrongfully convicted.

    That said, the appellate decisions in Ohio and Georgia should have persuasive authority with respect to how they can influence Texas appellate court decision making. At any rate, they show us how serious legal minds end up deciding this issue, and it's consistent with our view.

    A point not made yet (can you believe it?) is that the reference to "reduced speed" in the impeding law wording clearly refers to a context in which speeds that are not so reduced are reasonably possible, which of course excludes bicyclists (or any slow mover) who are moving as fast as they reasonably can (and thus not at a (reduced speed").

    It's a slow but deliberate and brilliant system of justice in my view. It hinges on finding the right cases to appeal.

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  21. Amish buggies are typically driven 5-8 mph on highways with 55 mph traffic. Here is a video on how Ohio deals with this issue. Note, requiring the buggies to be driven in the shoulder is not part of it.

    http://www.youtube.com/watch?v=Bh3Sew-Xfk0

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  22. I didn't observe any significant shoulders in the video. It IS a fascinating video to watch, however. I do wish they'd provide some direct Amish viewpoints rather than outsiders talking about them. It'd be somewhat like interviewing drivers about cyclists. Still a top notch one to watch, despite its faults. I think I'm becoming an Amish buggy fan.

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  23. Aren't the Amish unwilling to be photographed, much less filmed on video? I think they're okay with audio recording, however.

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  24. The speed is an interesting note. That 5-8mph is the speed the first arresting officer estimated that ChipSeal was going when he decided to pull Chip over. Chip is not as fast as he'd like us to believe, but he was actually going around 15mph. I thought Chip was quite crestfallen at the officer's estimate, but all the jurors nodded knowingly.

    I found it interesting that motorists overestimate buggy speeds, since they usually UNDERESTIMATE cyclist speeds. I, for example, have been honked at in a school zone while doing, well, a bit faster than the posted speed, and I'm pretty sure it wasn't a "slow down" honk. Since the guy in the left lane was going the same speed.

    I'm not sure why either really ought to be other than too many stagecoach movie chases, combined with too memories of kids on training wheel bikes.

    PP may be right about the video of the Amish, though I think some quotes would have been helpful in providing a more clearly balanced view than that of the outside motorist simply explaining how they could reflectorize up.

    In that way, it reminds me of the other Amish buggy article, where the main measures taken were rules for the Amish to follow instead of anything for the motorists.

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  25. Motorists also tend to underestimate their own speeds. The isolation of the passenger compartment tends to reduce the feedback for motorists, and thus drivers, unless they watch the speedometer, tend to speeed.

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  26. Good point, Anon, and there are other factors too. Like from a distance Amish buggies might not be immediately recognized as (slow moving) buggies, and so assumed to be motor vehicles moving at typical motor vehicle speed.

    Also, many people are so used to bicyclists being out of the way that they feel any bicyclist in the road is doing something wrong, regardless of how fast they are going. I think that's probably the most likely explanation for the honk in the school zone.

    Where bicyclist speed is most often underestimated is when someone needs to pull out in front of a cyclist coming from another direction. As to the cop estimating Chip going at 5-8 mph, that just shows how clueless they are, but, if that's what he really thought, it also gives insight into why they are so incensed by bicyclists riding in the road. They just don't see it as serious transportation at all.

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