It is the universal trigger and a pet peeve of millions of drivers. You’re making good time traveling 75 MPH in the left lane of a freeway with a 70 MPH posted speed limit. You tap your brakes, turning off the cruise control, because a midnight blue 2012 Buick Regal is firmly ensconced in the left passing lane, traveling at 65 MPH and staying abreast of a Kenworth tractor pulling a 53-foot trailer. Fifteen minutes later traffic is bumper to bumper behind you as far as you can see, and you resort to flashing your lights, to no avail. The driver of the Buick Regal believes that traveling at or near the speed limit in the fast lane is acceptable—and that they are teaching the impatient drivers behind them a valuable lesson in driving safety. In a perfect world, a sheriff’s deputy would suddenly appear and pull the Buick Regal over for unsafe driving and violation of state driving statutes. Far too often, however, instant karma doesn’t occur, but an accident does. Driving in the left lane for anything other than passing is not only illegal, its unsafe and results in thousands of accidents annually, according to a study by the Traffic Operations & Safety Laboratory within the engineering department of the University of Wisconsin-Madison. When looking for deeper pockets or additional defendants in automobile collision litigation, don’t look past the driver who may have put the entire sequence of events into action. If a driver is parked in the left lane on a four-lane highway and is not passing someone or making a left turn, he or she is breaking the law in a majority of states and can be ticketed.
A growing number of U.S. states are passing traffic laws that regulate driving in the left lane. Some allow it only for passing and others require slower traffic to yield the left lane if a faster vehicle is approaching. For a chart on the law in all 50 states regarding traveling in the left lane see HERE. In Texas, for example, signs on Texas multi-lane highways that read “Left Lane For Passing Only” indicate that the left lane on a divided highway is not a “fast” lane; it is a passing lane only. After passing someone and safely clearing the vehicle passed, a driver must move back into the right lane. In Texas, impeding the flow of traffic by continuing to drive in the left lane is punishable by a fine of up to $200.
There are two types of drivers: (1) those who get upset when somebody is illegally hanging out in the left passing lane, and (2) those who are blissfully ignorant that hanging out in the passing lane is both illegal and dangerous. When slower drivers are scattered between the right and left lanes, faster drivers must weave back and forth, slowing and speeding up repeatedly. For those who believe that they shouldn’t have to move over if they’re driving the posted speed limit, not only are they driving illegally, but evidence shows that slowing down and changing lanes is more dangerous than speeding. A car going 5 MPH slower than the speed limit has a greater chance of causing an accident than one going 5 MPH faster than the speed limit. That is why every state has some law on the books restricting the use of the left passing lane.
In 29 states, any car traveling slower than surrounding traffic must be in the right lane. In 11 states, the laws are even stricter—reserving the left lane only for turning or passing. In a growing number of states—especially Texas, Washington, and Ohio—police are engaging in an aggressive program to ticket violators. In Germany, the autobahn has a lower accident rate than American highways, despite there being no speed limit. The reason for this is that German drivers stay to the right unless they are passing.
The law in many states provides that a driver may use the left lane only when passing another vehicle, moving over to let merging traffic on to the road, moving over because there is an emergency vehicle on the shoulder (law in some states), or because he or she will soon make a left turn/take a left exit. Driving in the left lane makes other cars slow down and creates a traffic backup. Researchers have found that a few slow cars can create traffic jams, such as when there is a slow driver in the left lane next to an equally slow driver in the right lane. Traffic experts confirm that driving slower than surrounding traffic is more likely to cause an accident than speeding. Do-gooders and know-it-alls driving the speed limit in the left lane, albeit slower than the flow of traffic, believe they are teaching faster drivers a lesson. In fact, they are breaking the law and endangering those around them.
In other states, this statutory duty of slower traffic to keep right applies “notwithstanding the prima facie speed limits.” For example, in California, Cal. Vehicle Code § 21654 requires “any vehicle proceeding upon a highway at a speed less than the normal speed of traffic moving in the same direction” to drive in the right-hand lane, “notwithstanding the prima facie speed limits.” Laws such as this refer to the “normal” speed of traffic, not the “legal” speed of traffic.
Colorado is another state that takes its “Left Lane Law” seriously. C.R.S. § 42-4-1013(1) of the Colorado statutes makes it illegal for a person to drive in the left lane (passing lane), where the speed limit is 65 MPH or more, unless they are passing another vehicle, or the volume of traffic does not permit them to safely merge into a non-passing lane. Before it passed its Left Lane Law, Colorado drivers could proceed in the left-hand lane if they were traveling at the posted speed limit. What sense did it make to cite a driver for impeding traffic, when simultaneously the driver was obeying the posted speed limit? Impeding statutes were only enforceable when a vehicle was traveling below the posted or prima facie speed limit. New approaches to driving safety, combined with higher posted speed limits, now simplify the issue and allow law enforcement to take appropriate enforcement action to enhance the flow of traffic. The new approach acknowledges that by mitigating traffic-flow conflicts caused by slower-moving drivers, accidents resulting from the confluence of slow driving and aggressive driving would likely be reduced. If a motorist is stopped by a Colorado State Trooper for violating the Left Lane Law, the driver may receive a citation. The penalty for the citation is $35.00 with an additional $6.20 surcharge bringing the total to $41.20. The violation includes three points against the violator’s Colorado Driver’s License. If the citation is issued by a state trooper, the points can be reduced to two points if the penalty is mailed in within 20 days.
A growing number of states now require drivers in the left lane to move to the right, even if they are driving at or exceeding the speed limit. The speed of their vehicle is irrelevant. There is a duty to keep right and use the left lane for passing only. This is the case in Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Iowa, Minnesota, Montana, Nebraska, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Vermont, West Virginia, Wisconsin, and Wyoming. This type of statute, such as Wisconsin’s Wis. Stat. § 346.05(3), which ostensibly condones speeding, usually contains language such as:
(3) Any vehicle proceeding upon a roadway at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand edge or curb of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn or U-turn at an intersection or a left turn into a private road or driveway, and except as provided in s. 346.072.
This statute requires vehicles to travel in the right lane if they are traveling at less than “the normal speed of traffic.” It will be the job of lawyers to define what “less than the speed of normal traffic” means, but simply traveling the speed limit doesn’t suffice. If “normal traffic” is moving at 70 MPH in a 65 MPH, is somebody violating the law when passing while driving the speed limit? The police officer will have discretion to determine what the “normal speed of traffic” is under the circumstances. If a vehicle wants to pass on the left but can’t because of a slower-moving vehicle in the passing lane, there would appear to be a violation.
One issue which becomes problematical with the new laws is reflected by the concern of fleet owners and trucking associations, who argue that truck drivers should be able to pass slower moving 18-wheelers, but it can take a while because their rigs can be electronically limited to a certain speed. For an article written by Gary Wickert on speed limiters, how they work, and federal laws requiring Electronic Control Modules (ECM) on certain trucks, see HERE. The irony of the new Left Lane Laws isn’t lost on the astute here. People do not want a ticket when they’re speeding, but they want someone else to get a ticket for driving the speed limit.
Regardless of your opinion of the Left Lane Laws, most states have them, and aggressive lawyers looking for additional target defendants will make use of them where appropriate. Having slow drivers in all lanes can cause faster drivers to slow down and weave back and forth to change lanes, increasing the possibility of accidents. Drivers are most at risk of accidents when changing lanes. When some drivers are going slow in the left lane, and the right lane, then people who want to move faster through traffic must zigzag back and forth to maintain their driving pace, even if it exceeds the speed limit. They must change lanes looking alternatively over both shoulders, increasing the potential for accidents. Cultural differences also play a role here, as Europeans driving in the U.S. may be used to not having a speed limit.
Studies have shown that 98% of drivers exceed the speed limit. Twenty-one percent of drivers think it’s perfectly safe to exceed the speed limit by 5 MPH. Forty-three percent saw no risk in going 10 MPH over, and 36% say there’s no harm driving 20 MPH over the speed limit. There are stretches of road in Texas where the speed limit is 85 MPH. In Nevada, the speed limit is 80 MPH. The speed at which 85% of motorists travel is called “prevailing speed.” The prevailing speed is not the speed limit, as much as we’d like to insist it is. As a result, we have a proliferation of laws which regulate the use of the left passing lane. Speed limits are going up on interstates and highways because motorists are driving faster on them. Speed limits are increased to help decrease unsafe speed variations among the fastest and slowest drivers. Enforcement of Left Lane Laws helps to decrease those unsafe speed variations.
Proving that a vehicle was traveling illegally in the left lane can turn a driver who thinks he or she is being “prudent” by teaching others a lesson into a criminal and a defendant simultaneously. Violating a Left Lane Law can also result in negligence per se—the doctrine whereby behavior is automatically considered negligent because it violates a statute. Enforcement is inconsistent, but the law is the law. Toledo, Ohio police used to ticket truck drivers for driving at the 60 MPH speed limit in the left lane. Police looking for criminal activity frequently use the “keep right” law as a pretext to stop a suspicious car.
Much will depend on the facts of your case, but don’t overlook the “safe” driver who violates Left Lane Laws as a possible defendant should an accident and damages result from an accident that otherwise could and should have been avoided.
If you should have any questions regarding this article or subrogation in general, please contact Gary Wickert at gwickert@mwl-law.com
