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  1. #1
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    Right to Exceed Speed Limit to Pass or "Move Over"

    Hi,

    I'm a Michigan criminal defense attorney (boo, hiss). I'm arguing a case in my state arguing that my state's law allows someone to exceed the prima facie speed limit to either complete a passing maneuver or to "move over" (providing they complete the move sufficiently far away from the officer).

    Even though you'd think that laws like this would be uniform, they are not. I was conducting a straw poll on which states allow a driver to exceed the speed limit and which don't. I can already tell you that the only decisions actually appear to be out of Kentucky, Maine, and Nebraska.

    I was curious what your jurisdiction's position was on this point. I expect that my case (the People v. Me for five miles over with a perfect driving record) will plead out. My question is mostly curiosity, but I might write an article on this if I get energized enough. Nothing said here will be included in any such article.

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    Perhaps you could assert a necessity defense, if you were on a two-lane road.

    Maybe when you began the passing maneuver, there appeared to be ample room to complete it safely, but a car approaching too fast the opposite direction necessitated your speeding up to avoid an accident.
    Facts do not cease to exist because they are ignored. -- Aldous Huxley
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    There's no such exception in Florida written into the law, and we can't even cite for five over the limit unless it's in a school or construction zone.

    I'm not sure how things are in Michigan, but here our traffic court cases are not recorded in any way so there's no hard traffic case law unless the traffic violation led to the discovery of a criminal offense which subsequently went to court. That said, I've never heard of any exception to the speed limit allowed other than basic affirmative defenses. I have heard a successful necessity defense in traffic court where it was argued that the speed limit was exceeded to avoid a crash. I've also heard lots of other unsuccessful necessity defenses for speeding and other traffic violations.

    Personally, I think you'd have a hard time utilizing a necessity defense for a "move over violation." You could have slowed to let the vehicle pass and then moved over instead of speeding up to move over, so speeding up wasn't really a necessity. Florida's move over law also does not require you to move over if the maneuver cannot be done safely, you just have to slow down to 20mph below the speed limit. Assuming Michigan's move over law has similar verbiage, that's additional evidence that it really wasn't necessary to speed up.

    I still don't get why you'd get written a citation for five over. That seems a little absurd to me, but that's just my opinion.
    Last edited by Delta_V; 09-17-2009 at 06:14 PM.

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    Alabama Law provides for no such exception. That said, I seriously doubt you'd be cited for 5 MPH over the posted speed limit.

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    Speed limits are "absolute" in Michigan (though there are exceptions for emergency vehicles). So exceeding the limit is not allowed for passing, to comply with the "Move Over" law or any other reason. If you had to speed to move into the other lane, you instead should have chosen to remain in your lane of travel, reduce your speed and pass the emergency vehicle in a cautious manner (see section 1(b) below). I'm guessing that your actual speed was greater than 5 over and the officer chose to reduce the violation, as it would be uncommon for an officer to cite for a straight up 5 over violation. Good luck with your case.

    257.653a Stationary emergency vehicle giving visual signal; duty of approaching vehicle to exhibit due care and caution; violation; penalty.

    Sec. 653a.

    (1) Upon approaching and passing a stationary authorized emergency vehicle that is giving a visual signal by means of flashing, rotating, or oscillating red, blue, or white lights as permitted by section 698, the driver of an approaching vehicle shall exhibit due care and caution, as required under the following:

    (a) On any public roadway with at least 2 adjacent lanes proceeding in the same direction of the stationary authorized emergency vehicle, the driver of the approaching vehicle shall proceed with caution and yield the right-of-way by moving into a lane at least 1 moving lane or 2 vehicle widths apart from the stationary authorized emergency vehicle, unless directed otherwise by a police officer. If movement to an adjacent lane or 2 vehicle widths apart is not possible due to weather, road conditions, or the immediate presence of vehicular or pedestrian traffic in parallel moving lanes, the driver of the approaching vehicle shall proceed as required in subdivision (b).

    (b) On any public roadway that does not have at least 2 adjacent lanes proceeding in the same direction as the stationary authorized emergency vehicle, or if the movement by the driver of the vehicle into an adjacent lane or 2 vehicle widths apart is not possible as described in subdivision (a), the approaching vehicle shall reduce and maintain a safe speed for weather, road conditions, and vehicular or pedestrian traffic and proceed with due care and caution, or as directed by a police officer.

    (2) Except as provided in subsections (3) and (4), a person who violates this section is guilty of a misdemeanor punishable by a fine of not more than $500.00 or imprisonment for not more than 90 days, or both.

    (3) A person who violates this section and causes injury to a police officer, firefighter, or other emergency response personnel in the immediate area of the stationary authorized emergency vehicle is guilty of a felony punishable by a fine of not more than $1,000.00 or imprisonment for not more than 2 years, or both.

    (4) A person who violates this section and causes death to a police officer, firefighter, or other emergency response personnel in the immediate area of the stationary authorized emergency vehicle is guilty of a felony punishable by a fine of not more than $7,500.00 or by imprisonment for not more than 15 years, or both.
    Last edited by NoBridgeCard; 09-17-2009 at 11:24 PM.

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    Just because a defense is not expressly stated in the law does not mean that a more fundamental legal principle would not provide a defense. Perhaps the classic example is one where you are stranded because of a storm. You desperately need help. You break into a house to use the phone to call for help. You have a defense of necessity. You will still have to reimburse the owner of the house for the damage, but you are not criminally liable.

    • I can give an examples where an exception would be judicially created because of necessity or in order to avoid a greater harm:
    • You are driving along below the speed limit. Someone comes up behind you at an extremely high rate of speed and appears about to hit you. You speed up to get out of the way.
    • Same example, except that an ambulance or a police car with its emergency equipment operating comes up behind you at a high speed.
    • You are driving along at a safe speed. You see another car coming from a side street at a high speed. In order to avoid being hit by hit, you speed up and exceed the speed limit.
    Facts do not cease to exist because they are ignored. -- Aldous Huxley
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    Colorado law requires the vehicle being passed to slow and allow the passing vehicle by
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    DAL,

    Obviously you know that for the affirmative defense of necessity to work, the behavior actually has to be necessary. I assume the original poster is talking about a "move over" violation, and the act of moving over isn't necessary in the first place. He would have the burden of proof to show that a reasonable person would have sped up and changed lanes instead of slowing down to change lanes or slowing and not changing lanes altogether.

    For instance, in your storm example the defense of necessity wouldn't fly if there was a 24 hour convenience store across the street from the house that was burglarized. A reasonable person would call from the convenience store rather than breaking into a house to use the phone. Also, in the first two other examples you give I don't see how necessity would apply either (unless there was absolutely nowhere else for the car to go). A reasonable person would move over to the right for the emergency vehicle (as required by law) or change lanes for a car approaching from behind, not step on the gas and match their speed. I've heard that defense numerous times in traffic court when it comes to speeding violations and it never works.
    Last edited by Delta_V; 09-17-2009 at 07:15 PM.

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    Quote Originally Posted by Delta_V View Post
    DAL,

    Obviously you know that for the affirmative defense of necessity to work, the behavior actually has to be necessary. I assume the original poster is talking about a "move over" violation, and the act of moving over isn't necessary in the first place. He would have the burden of proof to show that a reasonable person would have sped up and changed lanes instead of slowing down to change lanes or not changing lanes altogether.

    For instance, in your storm example the defense of necessity wouldn't fly if there was a 24 hour convenience store across the street from the house that was burglarized. A reasonable person would call from the convenience store rather than breaking into a house to use the phone.
    As you can see, I wrote in the hypothetical. It is not entirely clear what he is intending to convey. If he had to move over to another lane because the car behind him was speeding, however, I would have expected the officer to stop the car behind him. As an aside, when a police car comes up rapidly behind me (even without emergency equipment activated), and the lane next to me is occupied, I speed up and get out of the way. Of course, you will not get stopped for doing that. The officer obviously does not want you to slow down.

    You are correct about the convenience store example, but my use of the word "stranded" was intended to convey "without means of coping with the surroundings"; a convenience store nearby would mean that the person was not stranded.
    Facts do not cease to exist because they are ignored. -- Aldous Huxley
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  10. #10
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    There is no right to speed in CA. The basic speed law states that a driver shall not exceed the SAFE speed for any area; except the roadways where signs are posted enforcing the Maximum Speed limit (55/65/70).

    One can pass another vehicle that is driving at less than the normal flow of traffic for any specific roadway.

    Maximum Speed Limit

    22349. (a) Except as provided in Section 22356, no person may drive a vehicle upon a highway at a speed greater than 65 miles per hour.

    (b) Notwithstanding any other provision of law, no person may drive a vehicle upon a two-lane, undivided highway at a speed greater than 55 miles per hour unless that highway, or portion thereof, has been posted for a higher speed by the Department of Transportation or appropriate local agency upon the basis of an engineering and traffic survey. For purposes of this subdivision, the following apply:

    (1) A two-lane, undivided highway is a highway with not more than one through lane of travel in each direction.

    (2) Passing lanes may not be considered when determining the number of through lanes.

    (c) It is the intent of the Legislature that there be reasonable signing on affected two-lane, undivided highways described in subdivision (b) in continuing the 55 miles-per-hour speed limit, including placing signs at county boundaries to the extent possible, and at other appropriate locations.

    Amended and Repealed Sec. 22, Ch. 766, Stats. 1995. Effective January 1, 1996. Repeal operative March 31, 1996.
    Added Sec. 23, Ch. 766, Stats. 1995. Effective January 1, 1996. Operative March 31, 1996.
    Amended Sec. 1, Ch. 20, Stats. 1996. Effective March 29, 1996.
    Amended Sec. 41, Ch. 724, Stats. 1999. Effective January 1, 2000.

    Basic Speed Law

    22350. No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.


    Amended Ch. 252, Stats. 1963. Effective September 20, 1963.

    Speed Law Violations

    22351. (a) The speed of any vehicle upon a highway not in excess of the limits specified in Section 22352 or established as authorized in this code is lawful unless clearly proved to be in violation of the basic speed law.

    (b) The speed of any vehicle upon a highway in excess of the prima facie speed limits in Section 22352 or established as authorized in this code is prima facie unlawful unless the defendant establishes by competent evidence that the speed in excess of said limits did not constitute a violation of the basic speed law at the time, place and under the conditions then existing.

    Increase of Freeway Speed Limit to 70 Miles Per Hour

    22356. (a) Whenever the Department of Transportation, after consultation with the Department of the California Highway Patrol, determines upon the basis of an engineering and traffic survey on existing highway segments, or upon the basis of appropriate design standards and projected traffic volumes in the case of newly constructed highway segments, that a speed greater than 65 miles per hour would facilitate the orderly movement of vehicular traffic and would be reasonable and safe upon any state highway, or portion thereof, that is otherwise subject to a maximum speed limit of 65 miles per hour, the Department of Transportation, with the approval of the Department of the California Highway Patrol, may declare a higher maximum speed of 70 miles per hour for vehicles not subject to Section 22406, and shall cause appropriate signs to be erected giving notice thereof. The Department of Transportation shall only make a determination under this section that is fully consistent with, and in full compliance with, federal law.

    (b) No person shall drive a vehicle upon that highway at a speed greater than 70 miles per hour, as posted.

    (c) This section shall become operative on the date specified in subdivision (c) of Section 22366.

    Amended Ch. 1220, Stats. 1994. Effective September 30, 1994.
    Amended and repealed Sec. 26, Ch. 766, Stats. 1995. Effective January 1, 1996. Repeal operative January 7, 1996.
    Added Sec. 27, Ch. 766, Stats. 1995. Effective January 1, 1996. Operative January 7, 1996.
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    So if I understand the situation correctly - the person failed to ensure there was safe distance involved to complete his passing so to counter his failure to yield to oncoming traffic his defense is that he is allowed to speed.
    What the heck are they teaching in law school these days? I can't believe an attorney would attempt to use such an argument and still expect to hold his credibility in front of the judge. Sort of like the attorney I once ticketed for running a stop sign. His defense was he did not believe the stop sign was necessary at that intersection and a yield sign would have been more appropriate. That attorney got the absolute worst butt chewing I ever heard from a judge. The judge told me later the guy was a tax attorney, wasn't very good at that, and the judge figured it wouldn't be long before that attorney would be starving to death if he stayed in the practice. Last I heard that attorney had given up practicing and was substitute teaching in a local high school. The judge had him pegged right.
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    Most of our defense attorneys are great people and know their law... but you, my friend, are killin' me.

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    In NY max. speed is max. speed, you cannot go over the state or posted maximum speed limit to pass, change lanes, etc.
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    I hear the excuse all the time on the freeway..... I had to speed up because my offramp was coming up. Keep in mind I dont stop until about 80 on the freeway so they are now going at least 15mph over the limit. No law in CA lets you speed over a maximum limit. As far as the basic speed law.....if you speed up to 5 mph over say a posted 35mph no problem as long as it was safe.

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    Am I allowed to respond when I initiated the post? I read the rule as saying that I shouldn't be answering questions in this forum. Clarifying or responding to what I previously posted doesn't seem to violate the rule, but don't want to commit any faux pas.

    I've shared my personal information with NoBridgeCard and StuChris to demonstrate (in part) that I really am who I claim to be. Beyond that, I will not comment until and unless I get a go ahead to do so.
    Last edited by stufried; 09-18-2009 at 08:32 PM.

  16. #16
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    Washington State allows drivers to exceed the posted limit in order to pass a vehicle traveling at less than the limit.

    RCW 46.61.425
    Minimum speed regulation — Passing slow moving vehicle.

    (1) No person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law: PROVIDED, That a person following a vehicle driving at less than the legal maximum speed and desiring to pass such vehicle may exceed the speed limit, subject to the provisions of RCW 46.61.120 on highways having only one lane of traffic in each direction, at only such a speed and for only such a distance as is necessary to complete the pass with a reasonable margin of safety.

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    Quote Originally Posted by stufried View Post
    Am I allowed to respond when I initiated the post? I read the rule as saying that I shouldn't be answering questions in this forum. Clarifying or responding to what I previously posted doesn't seem to violate the rule, but don't want to commit any faux pas.

    I've shared my personal information with NoBridgeCard and StuChris to demonstrate (in part) that I really am who I claim to be. Beyond that, I will not comment until and unless I get a go ahead to do so.
    Given that you are allowed to post a question, I would think that you should be allowed to post a revised question.
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  18. #18
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    Quote Originally Posted by RoadKingTrooper View Post
    Colorado law requires the vehicle being passed to slow and allow the passing vehicle by
    LOL. Never happens though. The jerk only goes fast when you want to pass him.

  19. #19
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    So the offender witness blue lights and instead of slowing down he speed up in order to "move over".

    Unless their was a line of traffic behind him and in the lane adjacent to him that prevent him from slowing down and merging. But even then the law says must slow down below max limit and move if possible. Had he just slowed down and stayed in lane it would have been safer and legal.

    You would need to show how speeding up beyond the legal/safe limits would be safer than slowing down. Doubt you can do that. But heck I only have 2years of edjumacation.... lol

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    Wow.The second question on my Pennsylvania Drivers written test 17 yrs ago stated it was never admissable to exceed posted speed limt,ever!!

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    In MN you can exceed the posted 55 mph speed limit on a two lane road to complete a pass as long as it is in a passing zone. You can only increase your speed by 10 mph or in other words you can go 65 in a 55 to pass. Now judges toss out speeding tickets around here if the ticket is less than 10 mph over the limit. You can do the math. This is a new law coming out this year.

    Don't you have a paralegal to find answers to these types of questions?

  22. #22
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    Stufried, in order for me to answer your question, please contact me for my rates.

    It is my personal policy not to freely advise professionals, who are seeking to form a defense in order to defeat one of my colleagues in a court of law, without first being remunerated. Especially for knowledge that I spent years accumulating at great expense. I am sure you understand.
    Last edited by kcso; 10-04-2009 at 03:11 AM.


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    in MD, DC, and Va, the "Speed Limit" is the LIMIT. You can not exceed it, it is absolute.

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    right on

    Quote Originally Posted by kcso View Post
    Stufried, in order for me to answer your question, please contact me for my rates.

    It is my personal policy not to freely advise professionals, who are seeking to form a defense in order to defeat one of my colleagues in a court of law, without first being remunerated. Especially for knowledge that I spent years accumulating at great expense. I am sure you understand.
    ++++++1

  25. #25
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    I get that lame excuse twice a week. You are not allowed to speed, even to pass. If you had to speed then you shouldn't of been passing.
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