Is Cycling on the Shoulder Illegal?

Pt Beach Cyclist w Dog wrong way shoulderLet’s re-visit the great war between the executive branch (NJDOT) and the legislative (NJ Title 39) and judiciary (NJ Supreme Court Polzo v Essex County ruling) branches with regard to bicycling on the shoulder. Everybody does it, but is it legal?

NJDOT’s excellent 2011 Bicycling Manual recommends “riding on the right side of the road or on the shoulder.” NJDOT’s circa-1996 Introduction to Bicycle Facilities notes, “Advanced bicyclists are best served by bicycle compatible streets and highways which have been designed to accommodate shared use by bicycles and motor vehicles.” Paved shoulders are considered one form of bicycle compatible roadway.

So NJDOT encourages it, but does that make it legal? NJ Title 39:4-14.1 states: “Every person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle.”

Wait a minute, isn’t a bicycle a vehicle? Not in NJ – human-powered devices are specifically excluded from the legal definition of vehicle in 39:1-1: “”Vehicle” means every device in, upon or by which a person or property is or may be transported upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks or motorized bicycles.”

So what, it’s the same thing while riding in the shoulder, right? Not really, as the shoulder is specifically excluded from the “roadway” legal definition in 39:1-1: “”Roadway” means that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder.” So a cyclist riding in the shoulder would not be granted all the rights and responsibilities as the driver of a vehicle.

Aren’t we nitpicking? Motorists can’t legally drive in the shoulder anyway – cyclists can’t very well have the same rights and responsibilities as the driver of a vehicle while riding in the shoulder, as it would also be illegal.

Exactly! If a cyclist has the same rights/responsibilities to follow the rules of the road, s/he should only ride in the travel lane, not in the shoulder.

NJDOT’s lawyers, presuming to encourage only legal cycling behavior, may well point to the sentence structure of 39:4-14.1. It implies that every person riding a bicycle *outside* the roadway (e.g. on the shoulder) would not have the same rights/responsibilities as the driver of a vehicle, but that doesn’t make it illegal, since it’s not explicitly prohibited, like it is for drivers of a vehicle in 39:4-82.

Under this interpretation, it’s a cyclist’s choice whether to ride in the roadway, and be legally bound to follow all the rules of the road, or live free on the shoulder. Just think, no rules, no responsibilities – bike against traffic, blow the wrong way through stop signs, it’s all legal if you’re a cyclist on the shoulder. Under this interpretation, cyclists have an implicitly legal option to ride on the shoulder that isn’t offered to drivers of vehicles.

So which is it? Illegal or legally available w no rights/responsibilities? According to the NJ Supreme Court in Polzo v Essex County, “Bicyclists do not have special privileges on a roadway’s shoulder. Indeed, a bicycle rider is directed to ride on the furthest right hand side of the roadway, not on the roadway’s shoulder. The Motor Vehicle Code does not designate the roadway’s shoulder as a bicycle lane.”

So, as far as the law with regard to cyclists is concerned, the NJ Supremes ruled that a cyclist “is directed” to the roadway, “not on the roadway’s shoulder.”

The Polzo ruling was in 2012 – why is NJDOT still encouraging cyclists to ride on the shoulder? Shouldn’t shoulders with sufficient space be designated as bike lanes? What ever happened to the Complete Streets policy?

 

 

 

 

 

 

 

 

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4 Responses to “Is Cycling on the Shoulder Illegal?”

  1. JerryFoster says:

    The NJ Supremes’ ruling that a shoulder is not intended for bicycling was key to the result of the ruling. If the court ruled that a shoulder was intended for cycling, the shoulder would by law have to be maintained in a safe condition, and Essex County would have been liable.

    In shielding the county, and by extension other maintaining jurisdictions, the court rejected the idea that bicyclists have a legal choice of where to ride, a choice not offered to the drivers of vehicles.

    NJDOT notes that a 1981 NJ Attorney General opinion asserts that Title 39 offers this choice to cyclists, and suggests that cyclists are “favored under the law” in this regard, but the Polzo ruling differed, saying cyclists don’t have such “special privileges.”

    The court ruled that a cyclist is “directed” to ride in the roadway. Being directed by the law is not being offered a choice, in my view (but then again, I’m not a lawyer).

  2. Les Leathem says:

    We agree on the wording of the statute. We disagree on the meaning of the sentence. “Regulations applicable to bicycles” [i.e., all of Title 39, subject to those exceptions stated herein] “shall apply whenever a bicycle is operated on any highway” [i.e., “the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel,” according to Title 39:1-1].

    The second sentence of the statute clarifies that Title 39 is applicable to a bicyclist traveling on any portion of any publicly maintained way. Polzo did not change that; it found that the shoulder did not need to be maintained to the same level as the roadway.

  3. JerryFoster says:

    Thanks Les, the statement you’re referring to reads: “Regulations applicable to bicycles shall apply whenever a bicycle is operated upon any highway or upon any path set aside for the exclusive use of bicycles subject to those exceptions stated herein.”

    So for example, bicycles must have reflectors, a brake, lights when riding at night, a bell, etc. even when riding on the shoulder. It says nothing about the rights/responsibilities of bicyclists.

  4. Les Leathem says:

    I do have to nitpick at one point in your argument. NJ Title 39:4-14.1 not only gives bicyclists rights and duties while on the roadway; the second sentence of that section explicitly gives the bicyclist the same rights and duties when riding on the “highway.” 39:1-1 defines “highway” to be the same as “street.” They both mean the entire road surface, including the “roadway” and the shoulder.

    So a bicyclist can’t, in your words, “live free” by riding on the shoulder. He or she is still subject to all the provisions of Title 39.

    Regardless, riding on the shoulder is problematic, as you rightly point out, based on the Polzo case. Given the difficulties faced in many communities over ANY accommodations for pedestrians or bicyclists, New Jersey has a long way to go before Complete Streets is any more than words meant to appease bike/walk advocates.

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