Articles Posted in TRAFFIC

Imagine you are laying in intensive care in a New York City hospital awaiting a life-saving heart transplant. Without the transplant, you will die. Now imagine a donor heart becomes available; it is flown in by helicopter as the members of your transplant team are notified to head to the hospital. The problem is, the surgeons and other specialists are not permitted to utilize red emergency lights or disobey certain traffic laws to speed their trip to the hospital even though your life hangs in the balance.

One would think that if an officer pulled over a surgeon for speeding on his or her way to a hospital for a medical emergency that the officer would escort the doctor to the hospital. Indeed, officers are taught that preserving life is always their first priority. Unfortunately, I have heard far too many complaints from doctors pulled over for speeding on their way to an emergency who, instead of receiving an escort from the officer, were delayed while the officer wrote a speeding ticket. Something is very wrong with a system that rightfully allows the Emergency Medical Technicians (paramedics) who drive the ambulance the dying patient is in to disregard certain traffic laws and regulations (VTL 1104) but does not extend the same privileges to the doctor who will perform those life saving procedures. Indeed, even sanitation patrol vehicles may disregard certain traffic laws and utilize emergency lighting and sirens. In other words, glorified garbage men have more priority than doctors in route to save a life. (See VTL 101 & 1104).

However, there might be legal way to classify a doctor’s vehicle as an authorized emergency vehicle thus allowing him or her to disregard certain traffic rules and regulation and to also utilize red emergency lighting. In People v. Levy, 188 Misc.2d 103, 727 N.Y.S.2d 248 (2001), the Appellate Term for the Second Department held that a volunteer ambulance service member’s vehicle qualified as “emergency ambulance service vehicle” as defined in VTL 101 because the defendant produced uncontroverted proof that the vehicle was affiliated with a volunteer ambulance service. Specifically, the defendant produced a dashboard placard showing that his vehicle was affiliated with a local private ambulance service.

In previous blogs I discussed the reduced speed limits in work zones as well as the definition of a work area. As discussed, many White Plains speeding tickets are issued in the work zone along I-287. Much of the highway work is done by members of The Laborers’ International Union of North America (LIUNA) of which I am a member in good standing. Prior to becoming a criminal attorney I worked through Local 731 of LIUNA and to this day I still pay my monthly dues and carry my “card”.

As we approach and pass through construction zones, all of us have seen flagpersons either redirecting the flow of traffic or advising oncoming traffic of hazards and the need to slowdown. Basically, a flagperson is one employed by the state, municipalities, local authorities, public authorities including public utility companies or individuals working for companies under contract with such state agencies who have been assigned to direct and control traffic on public highways in connection with any construction or maintenance work. A flagperson is also one employed to direct traffic at railroad crossings and who has been authorized to direct traffic in connection with escort vehicles operating on a public highway (See VTL § 115-b for the exact definition of “flagperson”).

I have worked as a flagperson and I can state from experience that it is one of the more dangerous jobs. The flagperson is generally in the line of traffic and most drivers don’t’ realize that a flagperson has the same authority as a police officers in terms of directing traffic. (See VTL § 1102). Lately, however, most municipalities now station police officers at construction zones on local streets to help slow down the traffic flow. Nevertheless, a motorist must comply with a lawful direction or order of a flagperson whether a police officer is present or not. (VTL § 1102).

The City of White Plains Police Department is relentless when it comes to issuing speeding tickets. This is especially so in school zones. At Tilem & Campbell we are routinely retained by motorists who received a school zone speeding ticket in White Plains. Many of these White Plains speeding tickets are issued in the Stepinac High School zone along Mamaroneck Avenue where the speed limit drops from 40 mph to 25 mph. Although there is no parking across the street from the high school, there are no drop off points across the street from the high school, the high-school is set back several hundred feet from the main road and all student parking and pick-up locations are several hundred feet from the main road, the speed limit drops dramatically at that location and others along Mamaroneck Ave. and elsewhere.

School zone speeding tickets are covered in NY VTL § 1180(c) which states in general terms that whenever a maximum school zone speed limit has been established, no motorist shall exceed said speed limit during school days indicated on a school zone speed limit sign provided that such reduced speed can only be in effect from 7 a.m. to 6 p.m. or any time interval in between (See VTL § 1180(c)(1)).

Instead of a school zone speed limit sign, a reduced school zone speed limit may be indicated by flashing lights indicating that a reduced school zone speed limit is in effect during school activities. Such flashing lights may only flash and therefore, may only reduce the school zone speed limit for a period starting 30 minutes before and up to 30 minutes after school activities (See VTL § 1180(c)(2)).

The City of White Plains hosts one of the busiest traffic courts in Westchester County and probably the most common traffic infraction cited in White Plains is speeding. That’s understandable with Interstate 287, the Hutchinson River Parkway and the Bronx River Parkway running through it. As a result, in addition to the White Plains Police Department, speeding tickets returnable in the White Plains City Court are issued by the Westchester County Police and the New York State Police.

A common hot spot for White Plains speeding tickets, especially work zone speeding tickets is Interstate 287. For the past several years construction work has been taking place on I-287 in White Plains. This construction results in “work zones” or “work areas” along I-287 wherein the speed limit is 45 mph.

Not only are work zone speed limits generally 10 to 20 mph less than the normal speed limits, the minimum fine for speeding in a work zone is double that of a non work zone speeding ticket. You may not drive through a work or road maintenance area faster than the posted speed limit (VTL §1180(f)). However, as I stated above, the speed limit in these areas is generally 10 mph to 20 mph less than usual and can tend to sneak up on drivers. A work zone speed limit may not be more than 20 mph below the normally posted speed limit for that area nor may a work zone speed limit be less than 25 mph. (VTL § 1180(f)).

For the most part, yes, in New York, bicyclists are subject to the same rules of the road as motor vehicles. In fact, in New York City it is not uncommon for bicyclists to be “pulled-over” and issued tickets for violations committed while traveling on their bicycles. There are, of course exceptions which will be discussed below. Generally, a bicycle is defined under New York law as a two or three wheeled device propelled by human power. The definition however, does not include devices with solid tires intended to be used by pre-teenage kids on the sidewalk. (See VTL § 102 for the exact definition).

Generally, bicyclists must obey the same rules of the road as operators of other vehicles. See VTL § 1231 which provides in pertinent part that anyone riding a bicycle or in-line skates are subject to all the rights and duties applicable to drivers of more common vehicles except for certain regulations and provisions which by their very nature have no applicability. VTL § 1231

For example, a bicyclist must stop at a stop sign. Trzepacz v. Jara, 1 A.D.3d 531, 782 N.Y.S.2d 852 (2nd Dept. 2004). And a bicyclist operating on a roadway, with few exceptions, bears virtually all of the same responsibilities a driver of a motor vehicle does. Redcross v. State, 241 A.D.2d 787, 660 N.Y.S.2d 211(3rd Dept. 1997). Just as a bicyclist must obey the same rules as the operator of a more conventional vehicle, the bicyclist is also entitled to the same rights or “right of way” as the more conventional vehicle. Therefore, a motorist must yield the right of way to a bicyclist who is already lawfully in the intersection. People v. Marr, 187 Misc.2d 280, 721 N.Y.S.2d 737 (2001 Jus. Ct. Vil of Horseheads)(Motorist found guilty for failing to yield right of way to bicyclist, who motorist subsequently hit, at an intersection where bicyclist had the right of way.)

The simple answer is no. Emergency vehicles in New York are defined as police vehicles or bicycles, ambulances, fire, corrections and civil defense emergency vehicles as well as sanitation patrol vehicles, emergency response vehicles, certain vehicles of the United States Armed forces and hazardous materials emergency vehicles. VTL § 101. Vehicle and Traffic Law section 1104 permits the above mentioned emergency vehicles to disregard certain traffic laws and regulations when involved in an emergency operation. VTL § 1104.

However, with the exception of police vehicles, the other emergency vehicles are only exempt from the traffic laws and regulations if they are traveling with an audible signal as well as at least one red light (if more than one light, at least one must be red) visible from at least 500 feet. VTL § 1104(c). For obvious reasons, police vehicles are exempt from the siren and lighting requirements. The driver of a police vehicle nevertheless still must drive with due care and may not proceed recklessly.

The above listed vehicles found in VTL § 101 are the only emergency vehicles authorized the disregard certain traffic laws and regulations (provided they do so with due care and not in a reckless manner). A member of a local volunteer fire department therefore, may not equip his or her vehicle with lights and sirens and declare it to be an emergency vehicle thus allowing him or her to disregard traffic laws and regulations while traveling to a fire. Nicosia v. Shultis, 239 A.D.2d 473, 658 N.Y.S.2d 640 (2nd Dept. 1997).

Another compelling reason not to allow the issuing officer to also act as the prosecutor in a New York traffic violation case is supported by the Latin maxim “inclusio unius est exclusio alterius”. What this Latin Maxim means is that where a law expressly describes a situation where it applies, an irrefutable inference arises that what was excluded or omitted was intentionally excluded or omitted. This ancient rule of statutory construction is codified in New York McKinney’s Statutes § 240 titled “Expression of one thing as excluding others”.

Section 240 states in pertinent part: “where a law expressly describes a particular act, thing or person to which it shall apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” In other words, where a statute specifically mentions that said statute applies to one category of persons, said statute irrefutably implies the exclusion of other persons not specifically mentioned was intended by the Legislature. See e.g. Combs v. Lipson, 44 Misc.2d 467, 254 N.Y.S.2d 143 (1964) (Holding that the express grant of power to one person excludes by implication the grant of same powers to another.)

Applying this rule to situations where non-attorneys may represent others in New York, if the New York State Legislature enacted a statute which expressly described what class of non-attorneys could represent other people in court, an irrefutable inference arises that those non-attorneys not described in the statute may not represent others in a court or other quasi-judicial proceeding.

Many times at the New York Criminal Defense Firm of Tilem & Campbell we are contacted by individuals who have been charged with Aggravated Unlicensed Operator (VTL § 511) resulting from the suspension or revocation of their New York State driver’s license or the suspension or revocation of their privilege to drive in New York if they are an out-of-state resident. This charge is not simply a traffic violation but it is a serious criminal matter that could result in a misdemeanor conviction.

While I will not discuss the details of the Aggravated Unlicensed Operator charge in this blog, I will discuss a key element of the charge that must be attacked in order to defeat the charge. (It should be noted however that if the defendant clears up the underlying suspensions that resulted in the Aggravated Unlicensed Operator charge most, if not all, prosecutors will agree to reduce the charge to a non-criminal traffic violation. If however, the defendant has multiple Unlicensed charges, was intoxicated, injured someone or if some other aggravating factor is present, their might not be an offer and the case must be fought because a criminal record hangs in the balance.)

What is the key element to attack in an Aggravated Unlicensed Operator charge? It’s the know or having reason to know that your license was suspended or revoked element that must be attacked. In order to be convicted of Aggravated Unlicensed Operator, the People must prove that you knew or had reason to know that that your license was suspended or revoked. How can the People prove this? New York Vehicle and Traffic Law section 214 basically states that if the DMV produces an affidavit from an employee explaining the procedures DMV follows for mailing suspension or revocation notices and if electronic copies of such notices are presented in court, there is a statutory presumption that such notice was mailed.