Virginia's "move over" law is designed to protect citizens, police officers, and other emergency personnel while they are on the side of the road. Failure to yield to emergency vehicle charges in Fairfax County are common but the penalties can be harsh due to the potential danger involved. If you have been charged with this offense we recommend reaching out to an attorney to discuss the case and available options. We offer a free consultation to discuss your case. Give us a call or use the contact form below.
What is the "move over" Law?
Virginia Code §46.2-861.1 requires drivers to yield or otherwise slow down when approaching stationary vehicles that display certain warning lights. Depending on the type of stationary vehicle the violation can be a traffic infraction (moving violation) or misdemeanor charge.
§46.2-861.1(A)
When approaching a stationary vehicle displaying a flashing, blinking, or alternating blue, red, or amber lights the driver has a duty to make a lane change away from the stationary vehicle (unless there is already a lane dividing the stationary vehicle and the driver). However, the statute does give some discretion to the driver and requires that this maneuver be made only if safe and reasonable. If, however, the driver cannot safely move over then they may maintain their lane and proceed with caution while maintaining a safe speed (i.e. slow down) while passing the stationary vehicle.
This statute applies to police cruisers, military vehicles, ambulances, fire department vehicles, and those with public utility companies that are maintaining electrical or gas services, among a few others. Most of our cases involve clients that had passed a police officer that had another individual pulled over but they themselves did not move over. A violation of this provision of the statute is considered reckless driving which is a Class 1 Misdemeanor. An attorney is strongly recommended for this type of offense.
§46.2-861.1(B)
This provision of the statute has the same requirements as §46.2-861.1(A) but pertains to stationary vehicles that are tow trucks or other vehicles that are servicing disabled vehicles and to those vehicles that are maintaining or repairing the roads, assisting in traffic incidents, or performing traffic management. Any violation of this part of the statute is a traffic infraction and is three DMV-demerit points on the driving record. In our experience this charge arises when a police officer writes it as a "reduced ticket", instead of the misdemeanor charge, when a driver did not move over when the police officer had another person pulled over on the side of the road. The other occasion for this charge can be in cases where it was near end of an accident scene investigation and all that was left was a tow truck removing a damaged vehicle from the side of the road.
§46.2-829
Virginia Code §46.2-829 is similar to §46.2-861.1 but applies to Emergency Vehicles that are approaching rather than stationary. Under this statute, an emergency vehicle that is flashing, blinking, or alternating emergency lights (including using sirens or horns) may drive in disregard of normal traffic laws provided they regard to the safety of persons and property. Citizens must drive to the nearest edge of the roadway, clear of any intersection of highways, and stop and remain there, unless otherwise directed by a law-enforcement officer, until the emergency vehicle has passed. The statute essentially tells citizens to "get out of the way" once traffic and other highway conditions permit.
A violation of this statute is a traffic infraction (moving violation). However, overtaking or passing a moving emergency vehicle that has its emergency equipment activated is considered reckless driving (again, an attorney is strongly recommended in this type of case).
Defenses to Failure to Yield to Emergency Vehicles
The main defense is outlined in the title of the statute: "Drivers to yield right-of-way or reduce speed when approaching stationary vehicles displaying certain warning lights on highways." The statute is very clear in that the driver must use caution and change lanes if reasonable. This means that, if you're in traffic and cannot move over because another vehicle is in the lane adjacent to you, there is no obligation for you to move over. In many cases the police are busy with another vehicle on the side of the road so they don't necessarily get a good visual of what is going on beside you. Because the statute imparts a duty on you to exercise caution before you move over Judges do listen to this argument because they don't want people being a hazard to other drivers on the road simply because there is an emergency vehicle coming up on the side of the road.
In addition, §46.2-861.1(D) relieves your obligation to move over in the event you are in a highway work zone. Pursuant to Virginia Code §46.2-878.1 a highway work zone is defined as any maintenance or construction occurring on or beside a highway that is marked by warning signs or other traffic control devices. Due to the constant road work in Northern Virginia this issue should always be reviewed in analyzing these cases because it may bar a prosecution for the charge. Failure to Yield to Emergency Vehicles are not as common as some types of charges but, in Fairfax County, they are significant charges nonetheless and need to be address properly.
Contact us for a Free Consultation
We are in the Fairfax County Courthouse everyday and can help. In many cases there is a valid defense while, in other cases, we have enough mitigating factors that we can negotiate a reduction of your charge. In any case, feel free to reach out to us and we would be happy to discuss your case.