Obscure but important traffic law needs more publicity

Baltimore Politics Arlington Law and Politics Examiner

June 16, 8:05 PMArlington Law and Politics ExaminerChristopher Leibig

On May 17, 2009 at 8:50 in the morning, Peter Johnson of Fairfax County and his wife drove north on Interstate 95. It was a Sunday morning. As they approached the exit for route 123 in Woodbridge, Peter noticed State Police cars on the right shoulder. Apparently, the police had someone pulled over. Peter was in the right lane. In the left lane, about four cars back, he could see a car approaching, but he could not determine its speed or at what rate it gained on him. He slowed, and used extra caution while passing the police cars. But he did not switch to the left lane. He passed the traffic stop, in his view, safely.

Minutes later, State Police stopped Peter’s car and issued him a ticket under Va. Code section 46.2-921.1 – a serious traffic offense carrying up to twelve months in jail and 6 points on the offender's DMV record. Before that day, Peter’s DMV record was spotless. He did not believe he committed reckless driving, endangered anyone, or violated any law at all. But despite his caution, he soon learned he may be guilty of a jail-able offense.

State Police were stopping people on I-95 that morning specifically to educate the public about a little known, but important, traffic law in Virginia. Virginia law makes it a class one misdemeanor not to change to the far lane when approaching a stopped emergency vehicle unless it is unreasonable to do so. See Va. Code 46.2-921-1. The law is pretty simple: whenever a Virginia motorist in the right lane of a highway approaches a police vehicle stopped on the right shoulder conducting a traffic stop, the motorist must switch lanes to the left.[1] Slowing down, using care, or staying in the far left portion of the right lane is not sufficient unless it would be unsafe to switch to the left. Failure to change lanes in this circumstance is a more serious offense than speeding, running a red light, driving without headlights on at night, or driving without a license. It is one of the few moving violations in Virginia (like hit and run, DWI, racing, and eluding police) that carries a potential jail sentence.

PHOTO ABOVE RIGHT: VIRGINIA HIGHWAY SIGN THAT MISSTATES THE LAW ABOUT WHAT TO DO WHEN APPROACHING A STOPPED EMERGENCY VEHICLE ON A MAJOR HIGHWAY

The reason for such a law is obvious. Anyone who has stood beside a broken down car on a fifty-five mile-an-hour interstate highway understands the danger police must confront to enforce traffic laws on the highways. We all know most of the cars are doing at least seventy, and half of the drivers are paying attention to something other than driving. According to a study discussed in Police Chief Magazine, 111 police officers were killed when struck by cars on duty between 1993 and 2002.[2]

But many in the public are unaware of this law, for good reason. The Virginia Department of Transportation’s highway signs misstate the rule, falsely informing motorists that they need only “move over” or “slow down” when approaching a stopped emergency vehicle. Assuming that “move over” properly conveys to motorists to make a lane change, the sign still misadvises by telling them that merely slowing down is sufficient to comply with the law. In fact, the statute says nothing about slowing down. It requires a lane change unless unsafe. If unsafe to make a lane change, a motorist may instead “proceed with due caution”. The code itself section reads as follows:

§ 46.2-921.1. Drivers to yield right-of-way or reduce speed when approaching stationary emergency vehicles on highways; penalties.

The driver of any motor vehicle, upon approaching a stationary emergency vehicle, as defined in § 46.2-920, that is displaying a flashing, blinking, or alternating emergency light or lights as provided in §§ 46.2-1022, 46.2-1023, and 46.2-1024, shall (i) on a highway having at least four lanes, at least two of which are intended for traffic proceeding as the approaching vehicle, proceed with caution and, if reasonable, with due regard for safety and traffic conditions, yield the right-of-way by making a lane change into a lane not adjacent to the stationary emergency vehicle or (ii) if changing lanes would be unreasonable or unsafe, proceed with due caution and maintain a safe speed for highway conditions. Violation of any provision of this section shall constitute a Class 1 misdemeanor. . . . .

The State Police got their message through to Peter Johnson, who now knows his obligations under Virginia law. Had his case gone to trial, his mere caution would not have been a defense. He would have been found guilty unless the Judge agreed that it would have been unsafe for him to switch to the left lane, a decision that could always go either way. As it happened, the prosecutor gave Peter a break. His ticket will be dismissed if he takes a driver safety class.