Category Archives: Driving Laws

Keep Your Eyes on the Road: 2017 Brings New Cellphone Restrictions for California Drivers

Existing California law restricts motorists from talking on a cellphone or texting while driving, except when using a device in voice-operated, hands-free mode. The current text messaging restriction applies to writing, sending, and reading texts on a cellphone or other wireless device while driving. The law doesn’t, however, address other uses of cellphones and wireless devices. So common smartphone and tablet features like internet browsers and GPS—which don’t involve text messaging—aren’t covered. (Cal. Veh. Code §§ 23123, 23123.5, 23124 (2016).)

Realizing the deficienciesroad-people-street-smartphone in the current law, the California Legislature passed legislation (Assembly Bill 1785, “A.B. 1785”) this past year to fill the gap. The new law will prohibit California motorists from “holding and operating” any cellphone or wireless device while driving. By using this broad wording, the Legislature presumably intended to restrict motorists from doing anything on their devices that could be a distraction. Several exceptions apply to the new rule, one of which permits drivers to turn on or off a mounted GPS, so long as it requires only one tap or swipe to do so. Manufacturer-installed systems that are embedded in the vehicle are also exempt. (Cal. Veh. Code § 23123.5 (version effective Jan. 1, 2017).)

(Read more about California’s distracted driving laws and the penalties for a violation.)

New York Enacts New Boating-While-Intoxicated Legislation

By John McCurley

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On August 16, 2016, New York Governor Andrew Cuomo signed Tiffany Heitkamp’s Law. The new legislation—which takes effect November 1, 2016—increases the boating-while-intoxicated (BWI) penalties for most offenders with prior drunk-driving convictions.

In New York, anyone with a prior offense who’s convicted of either BWI or DWI is subject to greater penalties. But whether the prior offense was a BWI or a DWI can make a big difference.

Under current New York law, a BWI conviction is punished as a repeat offense only if the prior conviction was also for BWI. So, even if a boater has three prior DWIs—but no prior BWIs—a BWI conviction will be considered first offense.

Once Tiffany Heitkamp’s Law goes into effect, a DWI will count as a prior offense when someone is being sentenced for BWI. For instance, if a BWI offender has been convicted twice of DWI in the past three years, the current BWI will be punished as a third offense.

Interestingly, the new law doesn’t go the other way: It doesn’t make BWI offenses count as priors for purposes of sentencing DWI offenders. In other words, a first-time DWI offender with multiple BWI priors will still be sentenced as a first offender.

California Passes Law Legitimizing Motorcycle Lane Splitting

By John McCurley

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Most California drivers have had the experience of sitting in freeway traffic when a motorcycle flies past, squeezing between grid-locked cars—a practice called “lane splitting.” Opinions differ on whether lane splitting should be allowed. Some motorists—mostly those who drive cars—believe that lane splitting is too dangerous and should be banned. Motorcyclists, on the other hand, generally think that lane splitting can be done safely and ought to be legal. But what’s the law in California?

Until just recently, California law was vague on the legality of motorcycle lane splitting. California Vehicle Code Section 21658—the only law on the books that would arguably cover lane splitting—says that when a roadway is divided into two or more lanes going in the same direction, all vehicles must be driven “as nearly as practical entirely within a single lane.” The California Highway Patrol (CHP) interpreted this law as neither authorizing nor prohibiting lane splitting.

However, on August 19, 2016, Governor Jerry Brown signed into law Assembly Bill 51 (AB 51). The legislation will add Section 21658.1 to the California Vehicle Code, with an effective date of January 2, 2017. The new law defines “lane splitting” as driving a motorcycle “between rows of stopped or moving vehicles in the same lane, including on both divided and undivided streets, roads, or highways.” Interestingly, the law doesn’t specifically say what’s permitted, but instead authorizes the CHP to create “educational guidelines” related to lane splitting safety. (Cal. Veh. Code § 21658.1.)

The CHP has yet to issue guidelines, but past CHP publications might give some indication of what’s to come. Previously, the CHP published guidelines (which they later retracted) that included advisements against motorcycle lane splitting when:

  • traveling more than ten miles per hour faster than the flow of traffic
  • traveling 40 miles per hour or faster, or
  • the flow of traffic is 30 miles per hour or faster.

The prior guidelines also explained that only riders who are experienced and competent enough should attempt lane splitting.

Though there’s still some uncertainly about the details of the new legislation, AB 51 makes California the first state to formally approve motorcycle lane splitting. It remains to be seen whether other states will follow California’s example.

Kansas Supreme Court: Law Making It a Crime to Refuse DUI Chemical Testing Is Unconstitutional

By John McCurley

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Like all other states, Kansas has an “implied consent” law for drivers suspected of DUI (driving under the influence). These laws generally require that drivers arrested for driving under the influence submit to chemical testing for the purpose of determining whether and how much alcohol or drugs are in their bodies. (These tests typically involve the analysis of blood, breath, or urine.)

In most states, the consequences of refusing a chemical test are administrative—the driver’s license will often be suspended for a period of time and the driver might need to pay a fine or install an ignition interlock device. These administrative penalties for refusing testing are often in addition to any punishment for driving drunk, which is its own crime.

Kansas, however, is one of a handful of states that make it a separate crime–under at least some circumstances—to refuse a chemical test. So, until quite recently, some drivers in Kansas who drove drunk and refused testing could be convicted of both a DUI and test refusal.

Refusal Statute Struck Down

Generally, Kansas law makes refusing a chemical test a crime if the driver has at least one prior DUI conviction or instance of refusing a chemical test. A conviction carries mandatory jail time and can be a felony. (Kan. Stat. Ann. § 8-1025 (2015).)

But on February 26, 2016, in State v. Ryce, the Kansas Supreme Court decided that the law making it a crime to refuse a chemical test violates federal constitutional rights of drivers. The court explained that, under the Fourth Amendment’s prohibition against unreasonable searches and seizures, drivers have a right to refuse chemical testing. The law making refusal a crime violated that right, according to the court.

The decision means that Kansas drivers who refuse to submit to chemical testing can no longer be convicted of refusal as its own offense. (Refusal will, however, still likely lead to administrative consequences such as a suspended license.) It’s unclear how the decision will affect drivers already convicted of refusing a chemical test. (State v. Ryce, No. 111, 698, slip opinion.)

DUI Testing After Ryce

The Ryce decision has important implications for law enforcement. The case naturally led to another decision that was issued by the Kansas Supreme Court on the same day it decided Ryce. In the second case, the court found that an officer violated a DUI suspect’s Fourth Amendment rights by coercing him into submitting to a chemical test.

In the second case, the officer told the suspect that if he refused to take a chemical test, he would face criminal penalties equal to or worse than those resulting from a DUI conviction. The suspect consented to the testing, but later argued that it constituted an illegal search and seizure on the theory that he consented only after being threatened with criminal penalties. The court agreed that the suspect’s consent wasn’t freely given because the officer’s advisement to the suspect—that criminal penalties could be imposed—wasn’t true. (See State v. Nece, No. 111, 401, slip opinion.)

Now, in Kansas, refusing to submit to a chemical test isn’t a crime. Not only that, but officers can’t threaten criminal prosecution to get drivers to agree to testing. It remains to be seen whether other states that have laws criminalizing chemical test refusals will follow the Kansas Supreme Court’s lead.

California Updates Forms for Challenging Traffic Tickets by Video

Police Officer Writing TicketOn September 1, 2015, the California Judicial Council updated forms for people who’ve received traffic tickets and want to show their faces in court without schlepping to the courthouse. As the relevant instruction sheet tells, “remote video proceedings” (RVP) are available in (1) those courts that choose to allow them and (2) “cases involving Vehicle Code infractions or local ordinances adopted under the Vehicle Code.” (Defendants are ineligible if their alleged traffic offenses involve drugs or alcohol or their cases are in Informal Juvenile and Traffic Court.)

It looks like ticket fighters might not be able to get their face time from the convenience of the home sofa, however. In a court that allows RVP and a case in which the judge has approved video appearance, the defendant must appear “at a remote location designated by the court.”

Of the forms—accessible at the Judicial Council page for traffic infraction forms—one (TR-505) is for those requesting arraignment and trial on the same day; the other (TR-510) is for people who want RVP for arraignment or trial on separate days.

To learn about the procedure for challenging a ticket through “two-way audiovisual communication” and the rights you give up with RVP, see TR-500-INFO (the aforementioned instruction sheet).