Dear Counselor: Bicyclists Must Tune Out The Tunes

Question: I have heard that a new law prohibits bicycling with earphones. But I still see people doing this. If a kid is caught with earphones, what is going to happen? Are there consequences for the parents, like the helmet law for minors?

Amy G. in Davis.

Answer: New Year’s Eve 2015 was the day the music died – at least for bicyclists who pedaled around town with earbuds in both ears. On January 1, 2016, a newly revised Vehicle Code section went into effect, which prohibits a person from operating a bicycle while wearing “a headset covering, earplugs in, or earphones covering, resting on, or inserted in, both ears.” This is not a significant change in the law. The prior law outlawed earphone use, but it did not apply to “earbuds.” So this new law extends to the iPod generation.

The reasons for the law have not changed and are somewhat obvious. Like earphones, earbuds can isolate the bicyclist from his or her surroundings. The bicyclist who doesn’t hear a fire engine or ambulance coming may find himself soon in need of one. The fine for the infraction is $100 for a first offense, $200 for a second offense, and $250 for an offense thereafter. Unlike the bike helmet law, which makes a parent jointly responsible for a fine incurred by his or her child, a violation of this law does not appear to be treated the same way. While the money collected for fines under the helmet law for minors goes to bicycle safety measures (e.g., helmets for children who cannot afford them), this law does not do the same.

Although the consequence of violating this law is an infraction and includes only a fine, you should be aware that more significant consequences may arise in a civil law context. Let’s suppose you violate the law on a quick trip to the store, and a driver (who ironically enough is listening to the radio in the car with the windows rolled up) then cuts you off. This causes an accident, which significantly injures you. Your remedy will be to sue the driver in a civil lawsuit for negligence. Because the facts are clear that the driver was at fault, the case is against the defendant is solid. You will likely recover your medical costs and receive some compensation for the pain in your shoulder that you will have for the rest of your life.

California, however, is a “comparative fault” state, which means that the defendant will be able to introduce evidence to show that the plaintiff was also at fault. Each party will introduce his or her evidence at trial, and the defendant will be sure to raise the fact that your earbuds rendered you blissfully unaware of your surroundings. After some persuasive argument by the driver’s lawyer (paid for by the insurance company), the jury may return with a verdict that says the defendant is liable for your injuries, but you were 40% at fault. In the blink of an eye, your recovery goes from $300,000 to $180,000.

Davis civil litigator, Michael Schaps, who regularly represents plaintiffs in personal injury suits, says, “an issue like a plaintiff’s comparative fault may mean the difference between a quick settlement of the case or years of litigation.” Schaps adds, “a violation of this law at the time of the accident makes it more likely that some of the fault will be attributed to you — even if you’re otherwise biking safely.” When asked about what bicyclists who can’t live without their tunes can do, Schaps suggests getting creative but staying within the letter of the law itself. “I recommend the handlebar-mounted boombox.” Maybe Schaps is on to something as portable bluetooth speakers have gained popularity.

Is it fair that a driver gets to roll up the windows, turn up the radio, and enjoy some music while bicyclists are essentially deprived of the same privilege? Shouldn’t the money from fines go to fund bicycle safety initiatives? I have my own views, but I will leave it to you Davisites to vigorously debate the issues and take your thoughts and opinions to the legislature. Until then, bike safely out there.


Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.

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By | 2017-09-20T08:54:26+00:00 January 24th, 2016|Dear Counselor|0 Comments

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