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Criminal Law: A closer look at details of the ‘Move Over’ Act

Gary Muldoon

Gary Muldoon

The “move over” law is set forth in Vehicle & Traffic Law § 1144-a. It regulates the conduct of vehicles where there is an emergency or hazard vehicle on the side of the road. However, the statute is limited in various ways, including its applicability to types of roadways, and to the types of vehicles on the side of the road.

Violation of this statute is a traffic infraction, with a fine from $250 to $400, up to 30 days in jail, and two points on the driver’s record. Thus far, no reported cases have addressed the statute.

Enacted in 2010, and called the Ambrose Searle Move Over Act, the section states in part:

(a) Every operator of a motor vehicle shall exercise due care to avoid colliding with an authorized emergency vehicle which is parked, stopped or standing on the shoulder or any portion of such highway and such authorized emergency vehicle is displaying one or more red or combination red and white lights …

For operators of motor vehicles on parkways or controlled access highways, such due care shall include, but not be limited to, moving from a lane which contains or is immediately adjacent to the shoulder where such authorized emergency vehicle displaying one or more red, blue or white or any combination … is parked, stopped or standing to another lane …

The statute has been amended twice: in 2011, adding a subdivision that relates to types of vehicles, and in 2013, regarding the lights that must be displayed.

Subdivision a has two components. The first component describes the duty of the operator of every motor vehicle. The second provides additional requirements when an operator is on certain specified types of roads.

Type of vehicle covered

An “authorized emergency vehicle” — that is, one parked, stopped or standing — comes within subdivision a, (under subdivision b, a “hazard vehicle” comes within the statute) see VTL §§ 101 and 117–a. Thus, the statute does not apply to disabled cars, for example, though upon encountering such a vehicle, it is obviously worthwhile to allow a wide berth.

Type of roadway covered

Nor do all roads come within this statute. Only two types are specified: “controlled-access highways” and “parkways.” By negative implication, other types of roads — including local roads — are outside the requirements of the second sentence.

One of those terms, “controlled-access highway,” is defined in Vehicle and Traffic Law § 109: “Every highway, street, or roadway in respect to which owners or occupants of abutting lands and other persons have no legal right of access to or from the same except at such points only and in such manner as may be determined by the public authority having jurisdiction over such highway, street or roadway.” Examples of a controlled-access highway are I-90 (New York State Thruway) as well as I-490 and 590.

The other term, “parkway,” is not defined in the VTL. Elsewhere it is defined as “a broadly landscaped highway, often divided by a planted median strip” (American Heritage Dictionary of the English Language, 5th ed [2011]). The Ontario State Parkway, among others, is an example of a “parkway.”

Highway and statutory construction

Local roads are not covered by this statute. The statutory mandate to “mov[e] from” one lane to another does not apply to a vehicle operator who is not on a parkway or a controlled-access highway. The rule of statutory construction, expressio unius est exclusio alterius, applies here: that is, the expression of one (here, parkway and controlled-access highway) excludes others not listed (here, other types of roads) (McKinney’s Statutes § 240; Scalia and Garner, Reading Law: The Interpretation of Legal Texts, 107–11 [2012]).

As a penal statute, the Vehicle & Traffic Law must be strictly construed (People v. Gagne, 127 Misc 2d 327 (Co Ct 1985); generally, see McKinney’s Statutes § 271).

The law is intended to protect emergency personnel, but it may be more protective of state police officers than local officers. While requiring the driver to use “due care” and move to the furthest lane away from the parked vehicle, the statute does not require the driver to slow down (see Carrieri, Practice Commentaries to Vehicle & Traffic Law § 1144–a.)

Where a traffic ticket is issued, the prosecution has the burden to establish that the type of road involved is a “parkway” or a “controlled-access highway.”

Gary Muldoon is a lawyer and author of “Handling a Criminal Case in New York.” His email address is gmuldoon@muldoongetz.com.

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