Expert: Chris Wagoner - 1/4/2009

Question
Commander Wagoner,

Thank you for taking time out of your busy schedule and making yourself available to answer questions for the general public, I find it of value.

Here is my situation. . . .  I was traveling in the left lane on I-75 Northbound thru Marion County Ocala, FL (Mile Marker 342), I am sure you have been down this stretch before.  The left emergency lane consists of a guardrail and a small patch of pavement that makes up the left emergency lane.  A FHP trooper was performing laser speed enforcement parked in the left emergency lane along this stretch of I-75.

His marked police cruiser was facing northbound and he was outside of his vehicle with his hand held laser gun facing southbound clocking the approaching vehicles.  With the left emergency lane not being very wide to begin with and the trooper needing the ability to open his car door to exit his vehicle, he had to park away from the guardrail.  This placed his police cruiser very close to the oncoming traffic in the (fast) left lane of I-75.

As I was driving in the left lane I clearly saw the parked FHP cruiser and the trooper out of his vehicle, but could not tell what he was doing.  Seeing that the police cruiser was parked and the trooper out of the vehicle I felt it was not safe to pass so close to his position at 70MPH and The Florida Move Over Law came to mind.  I felt it was not safe for me to reduce my speed down 20MPH below the speed limit or to 50MPH in the left lane on I-75 with traffic directly behind me as FS 316.126(1)(b)(2) calls for when emergency vehicles are parked or stopped.  So I choose the other option under FS 316.126(1)(b)(1), which was to vacate the left lane that I was in.  In order for me to change lanes safely I had to accelerate my vehicle so I could overtake the vehicle that was next to me in the center lane.  After doing this I could then safely move over vacating the left lane away from the parked trooper before crossing his position.  When I was accelerating I believe is when he clocked me and I was issued a citation for speeding.

I tried to error on the side of caution and safety and debating if I should take this to court using the “Law of Necessity” as my defense for violating the speed limit.  After doing some homework by reviewing the Florida State Statues, I just learned that under FS 316.126(1)(b) the law applies “when an authorized emergency vehicle making use of any visual signals is parked” and I was not aware of this caveat until now as the trooper did not have his lights enabled.  However, in my opinion this contradicts The Florida Move Over Law traffic signs that are posted along I-75 and especially the large detailed ones that are posted at all Florida rest stops.  They all make no reference of the parked or stopped emergency vehicle having to have visual signals enabled and or flashing to comply with FS 316.126(1)(b).  The different traffic signs posted on I-75 with respect to the Florida Move Law simply state “Move Over a Lane for Emergency Vehicles It’s The Law”, “Florida Law Move Over for Stopped Emergency Vehicles”, and the ones posted at all Florida rest areas state “Florida Law Move Over or Slow Down for Parked Emergency Vehicles”.

Under FS 316.074, I am required to follow all traffic control devices and is what I did, but it contradicts with FS 316.126(1)(b) because the traffic signs make no reference to flashing lights having to be enabled on the emergency vehicles.  Under FS 316.003(1) AUTHORIZED EMERGENCY VEHICLES definition, makes no reference to flashing lights having to be enabled to be defined as an emergency vehicle.  It is considered an emergency vehicle as long as is “designated or authorized by their respective department or the chief of police of an incorporated city or any sheriff of any of the various counties.”  So a parked FHP marked cruiser in my layman’s opinion is an emergency vehicle as defined by law and I moved over to comply with the statue.

So my questions are. . . . .

1.   In your professional opinion do you think this a valid defense?
2.   In your professional opinion how do you think the courts would look at this?
3.   In your professional opinion did the trooper beak any SOP by placing himself in an unsafe environment by running laser enforcement in the left emergency lane and potentially creating a hazard for the oncoming traffic that had to pass so close to his position?  The trooper could have positioned himself off pavement on the right spacious grassy shoulder to conduct speed enforcement creating a safer environment for the trooper and motorists.

I apologize for this complex and lengthy note but felt it was important to provide you with all the details.  Again, I thank you for taking the time and reading my post and I look forward to your response.


Warm Regards,

Jimmy  

Answer
Hey Jimmy,

I think you did a fantastic job of writing this up and you should use it just the way you wrote it up when you go to court. I think you have a very valid defense. I thonk the court would be surpirsed by all your research and the conflicts you found.

I think you are also right in that the trooper picked a very poor place to enforce LASER speed measurement. The very first and most important rule we (I) teach in RADAR/LASER class is one that you (the offcier) must pick a safe place to do the enforcement. This includes parking safely.

I would take what you have found and take your citation to court. While you did violate the law, you did so out of what you thought was a safety and nessisity issue, the intent was not there.

Best of luck.