New York law requires that drivers use ‘due care’ when passing emergency vehicles parked by the side of the road. The law of course protects police cars and ambulances (and their occupants), but many other vehicles are considered emergency vehicles, including ‘blood delivery vehicles’ and ‘ordnance disposal vehicles of the armed forces of the United States’. And new categories are added from time to time. The most recent change, as the Albany Times Union has reported, came when the private conveyances of volunteer firefighters and ambulance crews were added to the list.
What does ‘due care’ involve? Well, the measure, found in Section 1144-a of the Vehicle and Traffic Law, is informally known as the ‘move over’ law. It’s called that because, when driving on a four-lane highway, “due care shall include, but not be limited to, moving from a lane which contains or is immediately adjacent to the shoulder[.]”
Due care as defined this way can place you, as a driver, on the horns of an unpleasant – and potentially dangerous – dilemma. For instance, 1144-a requires you to move over, but only allows you to move over when “such movement otherwise complies with the requirements of this chapter including, but not limited to, the provisions of section[ ] . . . . eleven hundred twenty-eight of this title.” Vehicle and Traffic Law Section 1128(a), in turn, only authorizes a change of lanes when “the driver has first ascertained that such movement can be made with safety.”
This is where you begin to run into problems, particularly in heavy traffic. First of all, if you’re like most people you will have begun to slow as soon as the flashing lights came into view, if only because the drivers in front of you have done so. Meanwhile, experience has taught that traffic in the left lane will not slow down to the same extent as right lane traffic. If you attempt to pull over, some drivers may let you in, others won’t. If they weren’t to, and you were to pull into the left lane anyway, you’d likely be traveling more slowly than the vehicle you pull in front of. If that driver then has “to brake suddenly and veer to the left in order to avoid a collision,” as happened in Matter of Forman v. New York State Dept. of Motor Vehs., you’ve probably violated 1128(a). You also have to make sure, if you pull over into the left hand lane, that you don’t wind up following the car in front too closely. This would be both a violation of Section 1129(a) of the Vehicle and Traffic Law and – under the circumstances – a violation of Section 1128(a). Last but not least, you mustn’t forget to signal properly before changing lanes, as required by Vehicle and Traffic Law Section 1163. This provision would “require signaling [even] when a lane change can be made in complete safety without such a signal[,]” according to the appellate decision in People v. Rice.
The driver’s dilemma was the subject of a recent case out of the Cohoes City Court: People v. Krahforst. Krahforst ‘ appears to be the first published opinion that interprets Section 1144-a, and it addresses the interaction of Sections 1144-a and 1128(a). The driver in that case had passed an emergency vehicle without pulling over into the left hand lane. At trial, she argued that in her judgment it had been unsafe to do so: “I felt that it was inappropriate to move over” and “I didn’t feel it was safe,” she said. On the other hand, the police officer who had given her the ticket testified that “there was “plenty of room for the suspect vehicle to move over [to the left lane] at all times”
The driver’s legal position was that under 1128(a) she was the sole judge of whether it was safe to change lanes.
The written opinion of the court seemed to be based on a reverse-engineering of the statute. The analysis began with situations like that in Forman, in which other vehicles had had to take emergency action to avoid an accident (or in which there had been an accident), and pointed out that in those cases the driver had made an unsafe move, whether knowingly or not. The court then concluded that there had to be an objective standard under Section 1128(a) by which a driver’s actions could be judged.
Turning to the facts, the court found “a striking contrast between the officer’s testimony which involved the elements of distance and time” (although the only testimony quoted to support this was “there was plenty of room”) and the driver’s testimony, which the opinion characterized as involving ‘thoughts and feelings’.
The court then, at some length, discussed turn signals and the fact that the driver had failed to signal: “The failure to use her turn signal provides circumstantial evidence that the defendant lacked the intent to move over. Additionally, the signal would have caused the cars in the adjacent lane of traffic to react to her desire to move over by slowing down and giving her even more room to change lanes.” The court finally (and fatally for the defense) stated that “under the circumstances of this case, due care required, at minimum, that the driver engage her turn signal. Defendant’s failure to do so violated the statute.”
Although the driver testified that, because she’d been behind a big truck, she had failed to see the police car(s) until it was too late to take effective action, the court simply – and largely because of the road layout – failed to credit that testimony.
In conclusion: (1) when driving, keep your eyes peeled for flashing lights; (2) when you see flashing lights immediately put on your blinker; and (3) if at all possible, get over.