July 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAKE HUFF, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 10-030.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 31, 2012 -
Before Judges Sapp-Peterson and Ostrer.
This appeal requires us to construe the motor vehicle code provision that generally commands motorists (1) to drive their vehicle "on the right half of the roadway" if the road is "of sufficient width"; and (2) to drive "as closely as possible to the right-hand edge or curb of the roadway, unless it is impracticable to travel on that side of the roadway[.]" N.J.S.A. 39:4-82. On de novo review of the municipal court's judgment of conviction, the Law Division found defendant guilty of violating N.J.S.A. 39:4-82. We affirm.
Shortly after 8 p.m. on April 8, 2010, Mendham Township Police Patrolman Mark Ehrenburg, along with Officer Vincent Pagano, noticed a black vehicle operated by defendant repeatedly cross the double-yellow lines of Hardscrabble Road, and at times, continuously travel in the center of the road. Ehrenburg and Pagano followed the vehicle by a couple car lengths, traveling about 5 mph below the 40 mph posted speed limit. In front of the black vehicle, they observed two cars that traveled within the double-yellow lines, and one vehicle behind their police vehicle. Ehrenburg did not observe any obstructions in the roadway.
The officers performed a motor vehicle stop. As recorded on the police vehicle's on-board video, defendant admitted he drove in the middle of the road, and asserted he was taught to do so in driving school. Officer Ehrenburg issued a complaint-summons charging a violation of N.J.S.A. 39:4-82.
At trial in the Municipal Court, the State relied on Ehrenburg's testimony, which recounted those events, and the on- board video, which depicted defendant traveling in the middle of the roadway and crossing the double-yellow lines. At one point, as depicted on the video, defendant's vehicle virtually straddled the double-yellow lines. Officer Ehrenburg also testified there was room on Hardscrabble Road for two cars to pass each other, but he conceded he did not know what the standards were for road widths.
At the end of the State's case, defendant moved to dismiss, arguing the State had not proved the road was "of sufficient width." The State argued that "of sufficient width" was not a technical term, and meant only that a vehicle could safely travel on the right without being forced to cross the double-yellow lines. Municipal Court Judge Gary F. Troxell agreed, and denied the motion.
The defense presented two experts, Alexander Litwornia, an expert in road and traffic engineering, and John Desch, an expert in professional engineering, accident reconstruction and traffic safety. Litwornia had examined Hardscrabble Road. He described it as a two-lane rural roadway, between eighteen and twenty-two feet wide, with no shoulder, fog line, sidewalks or lighting, with adjacent trees and mailboxes. He stated that at various places, the double-yellow lines were not precisely centered. As a result, a driver could cross the lines in places without actually crossing the center of the road. At one point where defendant had crossed the double-yellow lines, a mailbox was inches from the roadway.
Litwornia testified that Hardscrabble Road, which he described as a Colonial road, did not meet various modern roadway standards. According to the standards in the Manual on Uniform Traffic Control Devices (Manual or MUTCD), the double-yellow lines on the road were unwarranted, because such lines are suggested only for roads at least twenty feet wide, carrying 6000 vehicles a day. Hardscrabble Road's 2007 daily volume was less than 2000 vehicles.
He also testified that the American Association of State Highway and Transportation Officials (AASHTO) recommended four feet of so-called "shy distance," that is, the distance between the right edge of a vehicle and any objects on the roadway. But, he opined, a driver should have at least two feet of shy distance. Also, according to AASHTO standards, a road with Hardscrabble Road's volume and speed limit should have been a minimum of twenty-two feet wide, with six-foot shoulders on each side.
Litwornia conceded that the width and shy distance standards he cited were intended to apply to new construction. But, he maintained the lining of Hardscrabble Road was improper, because municipalities were required to comply with the Manual in determining when to line a road. Litwornia testified that the presence of double-yellow lines tends to encourage faster and more hazardous travel speeds.
Desch, the defense's second expert, testified that he had inspected Hardscrabble Road and observed the road to be very narrow in places, winding and hilly, and required the driver's complete attention. Desch opined that defendant's maneuvers were justified by the mailboxes and other obstructions on the roadside. Having reconstructed many deer-related accidents, Desch explained a deer could at any time suddenly emerge from vegetation on the side of the roadway, so it made sense to move to the left.
Desch opined defendant's maneuvers also enabled him to maintain an adequate sight distance for oncoming traffic. Desch explained moving to the left enabled defendant to better view oncoming traffic, and to assess whether the car two vehicles ahead of him was braking. Desch opined it was safer for defendant to drive where he did than remain on the right half of the roadway, and defendant "was being careful and observant of what the roadway was doing ahead of him." Although he agreed it was practicable for defendant to remain in his half of the road, it was safer for him to drive down the center of the road that evening.
Judge Troxell relied on the videotape in finding, beyond a reasonable doubt, that the road was "of sufficient width" but defendant repeatedly failed to remain on the right half of the roadway; and no obstacles in the roadway made it "impracticable" to comply with the law. The judge imposed a fine of $106.00 and $33.00 in costs.
Upon de novo review, Judge Ironson also relied on the video and found it consistent with Ehrenburg's testimony. Based on the statute's apparent plain meaning, the judge determined N.J.S.A. 39:4-82 required that the road be of sufficient width to physically allow the driver to drive on the right half of the roadway. He found no indication that a determination of "sufficient width" under the statute depended on factors such as travel volume, shy distance or sight distance.
Applying that interpretation, the judge concluded beyond a reasonable doubt the road was "of sufficient width," noting that the other vehicles in front and behind defendant were able to remain on the right half of the roadway, and the video showed cars traveling in the opposite direction without crossing the double-yellow lines. The court also found it was "practicable" for defendant to keep to the right given road conditions.
Although there were mailboxes and dirt embankments on the side of the road at each of the places defendant encroached on the center of the road, the objects did not make it impracticable for defendant to stay to the right. The judge noted that other vehicles on the road at the same time as defendant were able to keep right. Also, there was no evidence deer were present on the night in question, and mere concern of deer crossings did not authorize motorists to violate N.J.S.A. 39:4-82. Finally, the court rejected defendant's argument that the complaint should be dismissed because the double-yellow lines were an allegedly illegal and inaccurate traffic signal. The court held the issue was not compliance with the double-yellow lines, but adhering to the right half and right edge of the roadway.
Accordingly, the court entered an order adjudging defendant guilty and imposed the same sentence imposed by the Municipal Court.
Defendant raises the following substantive issues on appeal:
I. THE LOWER COURT'S LEGAL CONCLUSIONS ARE SUBJECT TO DE NOVO REVIEW.
II. N.J.S.A. 39:4-82 REQUIRES PROOF THAT A ROADWAY CONFORMS TO APPLICABLE MINIMUM ROADWAY WIDTH STANDARDS IN ORDER TO PROVE THAT A ROADWAY IS "OF SUFFICIENT WIDTH" TO SUSTAIN CRIMINAL LIABILITY.
a. N.J.S.A. 39:4-82's Requirement that a Road Be "Of Sufficient Width" Is A Material Element of the Offense that the State Failed to Prove.
b. The Lower Court's Refusal to Apply Objective Roadway Standards To Determine Whether Hardscrabble Road Is "Of Sufficient Width" Was in Error.
c. Failure to Apply Governmental Roadway Standards To Determine Whether a Roadway Is "Of Sufficient Width" Would Mandate Dismissal of the Complaint Under the Doctrine of Lenity.
III. THE LOWER COURT ERRED IN ITS DETERMINATION THAT IT WAS NOT
"IMPRACTICABLE" FOR MR. HUFF TO KEEP TO THE RIGHT AT ALL TIMES.
IV. THE STATE'S CHARGE THAT MR. HUFF ALLEGEDLY VIOLATED N.J.S.A. 39:4-82 SHOULD HAVE BEEN DISMISSED BY THE LOWER COURT BECAUSE THE CHARGE IS BASED ON ALL
[sic] ILLEGAL AND INACCURATE TRAFFIC SIGNAL.
In reviewing a trial court's decision on a municipal appeal, we determine whether sufficient credible evidence in the record supports the trial court's decision. State v. Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335 N.J. Super. 374, 383-84 (App. Div. 2000). Unlike the Law Division, which conducts a de novo review on the record, Rule 3:23-8(a), we do not make independent findings of fact. State v. Locurto, 157 N.J. 463, 471 (1999). However, we exercise plenary review of the trial court's statutory construction, State v. Regis, 208 N.J. 439, 446 (2011), as well as legal conclusions that flow from established facts. State v. Handy, 206 N.J. 39, 45 (2011).
We conclude there was ample evidence in the record to support Judge Ironson's findings that Hardscrabble Road was at all points wide enough to enable defendant to navigate his vehicle in the right half of the roadway, if he so desired. No physical obstacles in, or hanging over the roadway compelled defendant to leave the right half of the road, or made it physically impracticable for him to remain near the right side of the road.
Defendant argues that the physical sufficiency of the road's width, and the physical practicability of remaining to the right are not enough to prove a violation. Defendant argues that a road is not of "sufficient width" if it does not comply with current width standards prescribed by AASHTO; and it is "impracticable" for a driver to remain in the right side of the roadway if driving in the center would provide a better view of oncoming traffic, and greater separation from roadside obstacles and deer that might enter the roadway. We disagree.
The key issue in this case is whether the facts as found by Judge Ironson constitute, as a matter of law, a violation of N.J.S.A. 39:4-82. This requires us to construe the statute. Based upon our reading of the plain language of the statute and prior judicial interpretation, bolstered by legislative history and persuasive interpretation of other state courts, we conclude, as did Judge Ironson, the facts constitute a violation.
We begin with the plain language. Regis, supra, 208 N.J. at 447 ("The Court's objective is to determine the meaning of the statute to the extent possible by looking to the Legislature's plain language."). N.J.S.A. 39:4-82 generally imposes two requirements on motorists: to drive on the right half of roads of "sufficient width" and to drive "as closely as possible" to the right edge of the roadway, so long as travel on that side is not "impracticable."
Upon all highways of sufficient width, except upon one-way streets, the driver of a vehicle shall drive it on the right half of the roadway. He shall drive a vehicle as closely as possible to the right-hand edge or curb of the roadway, unless it is impracticable to travel on that side of the roadway, and except when overtaking and passing another vehicle subject to the provisions of sections 39:4-84 and 39:4-85 of this Title. [Ibid.]
According to its plain language, the first sentence requires motorists to drive on the right half of a roadway, so long as it is physically wide enough to accommodate the vehicle. See Ceccomancino v. D'Onofrio, 111 N.J.L. 494, 499 (E. & A. 1933) (noting that "ample room on the highway" enabled compliance with the 1928 version of the statute). How much width is "sufficient" is unstated, but reasonably interpreted, "sufficient" accounts for the skills one could reasonably expect a driver to have to maintain a course within a given space. For example, a sixteen-foot-wide roadway - with eight-foot-wide halves - may be insufficient to enable a driver of a seven-anda-half-foot-wide vehicle to remain on the right half at all times. With only three inches to the right and three inches to the left, the driver may simply be unable to navigate the road so precisely that the vehicle remains at all times in the right half. "Sufficient" would also encompass navigation issues arising when a longer vehicle, with an unusually large turning radius, may need to leave the right half in order to navigate a sharp curve, although the roadway's width might be "sufficient" on a straight-away. Fairly read, "sufficient width" also takes into account obstacles in the roadway. Thus, a parked car, a pile of leaves or snow, a trash can in the roadway, or a jogger running along the roadside, may render an otherwise sufficiently wide road insufficient.
The second sentence imposes an additional requirement on all drivers, requiring they drive "as closely as possible" to the right edge or curb. How close is "as closely as possible" is also subject to reasonable limitations. A motorist is not expected to drive so closely to the right edge that there is a constant risk of departing the roadway. (On the other hand, if there is insufficient space for two vehicles to pass, then driving off the roadway may be unavoidable.) The requirement to drive near the right-hand edge is excused if it is not "possible," or if it is "impracticable" to travel on that side of the roadway, and except when overtaking and passing as allowed by law. This exception also takes into account the effect of obstacles in the roadway.
We discern no basis in the plain language to import AASHTO standards, as defendant argues. Nor do we find support for defendant's interpretation in the legislative history of the "keep to the right" statute.
The current provision, N.J.S.A. 39:4-82, has its roots in a 1928 statute. L. 1928, c. 281, Art. VIII, § 5. The original statute commanded motorists to drive on the right half of roads of sufficient width, and only drivers of slow-moving vehicles to drive "as closely as possible" to the right side. The 1928 statute stated:
Upon all highways of sufficient width, except upon one way streets, the driver of a vehicle shall drive the same upon the right half of the highway and shall drive a slow moving vehicle as closely as possible to the right-hand edge or curb of such highway, unless it is impracticable to travel on such side of the highway and except when overtaking and passing another vehicle subject to the limitations applicable in overtaking and passing set forth in sections seven and eight of this article. [Ibid.]*fn1
The 1928 New Jersey provision adopted verbatim the language proposed in the 1926 Uniform Vehicle Code produced by the National Conference on Street and Highway Safety, which endeavored to impose for the first time uniform rules of the road that are now engrained in American motorists' behavior. See Foreword to Final Text of Unif. Vehicle Code (August 20, 1926). The National Conference of Commissioners on Uniform State Laws endorsed the code. The intent of the drafters of a uniform law is instructive in construing New Jersey's version of the law. See Bayonne v. Port Jersey Corp., 79 N.J. 367, 372-73 (1979); Murillo v. Perez, 206 N.J. Super. 196, 203-04 (App. Div. 1985) (interpreting the New Jersey Parentage Act, the court relies on commentary of the Uniform Parentage Act, as the New Jersey Act was modeled after the Uniform Parentage Act).
Rather than incorporate roadway width standards, as defendant suggests, the statute imposed a rule of the road that the drafters intended would govern at a time when there was great variability in roadway widths and vehicle size, and limited standardization. See Explanatory Notes to Act IV, Unif. Act Regulating Traffic on Highways, 3d Nat'l Conference on Street and Highway Safety (1930) at 92-95; Report of the Committee on Measures for the Relief of Traffic Congestion, 3d Nat'l Conference on Street and Highway Safety (1930) at 35. Even by 1930, many improved roadways were only fifteen or sixteen feet wide in total, and even new two-lane highways were "mostly 18 or 20 feet." Ibid. When amendments to the uniform law were proposed in 1930, drafters endorsed a standard limiting vehicle widths to no more than eight feet. Act IV, Uniform Act Regulating Traffic on Highways § 78, 3d Nat'l Conference on Street and Highway Safety (1930).
The requirement that drivers adhere to the right edge of the roadway was apparently intended to address a tendency of drivers on America's early automotive highway network to gravitate toward the center of roadways, no matter how wide. As was observed in the report of the Third National Conference on Street Highway Safety in 1930, in support of marking lanes:
Traffic studies have shown that with increased roadway width there is a tendency of vehicles to travel at a greater distance from the curb or edge of the roadway. Lane marking tends to organize the traffic into well defined streams and lessens the danger of collision in overtaking and passing other vehicles. [Report of the Committee on Measures for the Relief of Traffic Congestion, 3d Nat'l Conference on Street and Highway Safety (1930) at 35.]
In 1930, the uniform law was amended to clarify that the requirement
to drive near the right edge was separate and distinct from the
requirement to drive on the right half, which the drafters applied to
all drivers, not just drivers of slow-moving vehicles.*fn2
Section 26 of the 1930 version of the Uniform Vehicle Code
(a) Upon all highways of sufficient width, other than one-way highways, the driver of a vehicle shall drive the same upon the right half of the highway except when the right half is out of repair and for such reason impassable or when overtaking and passing another vehicle subject to the limitations set forth in Section 30.
(b) In driving upon the right half of a highway the driver shall drive as closely as practicable to the right hand edge or curb of the highway, except when overtaking or passing another vehicle, or when placing a vehicle in position to make a left turn.
[Act IV, Unif. Act Regulating Traffic on Highways, § 26, 3d Nat'l Conference on Street and Highway Safety (1930).]
The drafters explained that the obligation to drive near the edge was "supplementary" to the obligation to drive on the right half, and was subject to distinct exceptions.
The rule as to driving on the right half of the highway and the supplementary rule that a vehicle shall normally travel as closely as practicable to the right edge or curb are separately stated in subdivisions (a) and
(b) for purposes of clarity and emphasis and because the exceptions to these two rules are not identical. [Explanatory Notes to Act IV, Unif. Act Regulating Traffic on Highways, 3d Nat'l Conference on Street and Highway Safety (1930) at 70.]
The distinction between the notion of "sufficiency" of width, and the practicability of driving on the right-hand edge applies to New Jersey's law as well, notwithstanding the other obvious differences in language between the 1930 uniform law and New Jersey's 1951 enactment.
Therefore, we discern no basis in the legislative history to justify incorporating modern roadway width standards to define and limit what constitutes a roadway of "sufficient width." Had that been the drafters' intent, the statute would have had virtually no impact at all, given the widespread absence of standardization in those days. Moreover, even today, numerous historic roads do not comply with AASHTO standards for newly constructed roadways. Defendant's position would exempt a significant portion of New Jersey's roads from a basic "rule of the road." We do not conceive the Legislature then, or more recently, intended such an unreasonable result. See State v. Hudson, 209 N.J. 513, 542 (2012) (a statute should not be interpreted in such a way that leads to an unreasonable or absurd result).
We also find no basis in the statutory language or legislative history to deem it impracticable for a driver to remain in the right side of the roadway because encroaching on the center of the roadway would provide a better view of the traffic that lies ahead, and provide greater separation from roadside mailboxes, vegetation, and potential deer. Presumably, the early drivers preferred to drive in the center of roadways to enhance their visibility, and to provide a greater distance between themselves and obstructions along with roadway. The drafters nonetheless determined those drivers should move to the right side.
Even after the 1951 amendment, the statute continued to define the obligation to stay near the right in terms of what is "possible," by requiring the motorist to drive "as closely as possible" to the right-hand edge or crub. N.J.S.A. 39:4-82.
The notion of what is "impracticable" comes into play only to describe the motorist's ability to travel on the right side of the road. Our Supreme Court recently construed "impracticable" as used in N.J.S.A. 39:4-88, requiring drivers to maintain their lane, to mean "reasonably capable of being accomplished" and "feasible." Regis, supra, 208 N.J. at 448 (quotation omitted). Thus, if a driver is "capable" of staying to the right side, then it is not impracticable to do so, regardless of the motorist's desire to get a better view of the road ahead.
Nor do we agree the rule of lenity compels us to adopt defendant's construction of the statute. Any conceivable vagueness or ambiguity is resolved by our resort to legislative history.
The rule of lenity, however, is not invoked simply because there are competing judicial interpretations of the statutory language, in New Jersey or elsewhere.
Instead, the rule of lenity is applied only if a statute is ambiguous, and that ambiguity is not resolved by a review of "all sources of legislative intent." [Id. at 452 (quoting State v. D.A., 191 N.J. 158, 165 (2007)) (other citations omitted).]
Our construction of the statute is also in accord with the persuasive reasoning of the Ohio Court of Appeals, which construed "sufficient width" to mean "width sufficient to allow a vehicle lawfully on the roadway to remain in the right half of the roadway." State v. Hostetler, 518 N.E.2d 56, 58 (Ohio Ct. App. 1987). Where the defendant drove his over-wide farm vehicle "as far to the right as he could go," but still protruded over the roadway's center by four feet, the court held the road was not of sufficient width. Ibid. See also State v. Leichty, 623 N.E.2d 48, 50 (Ohio 1993) (adopting reasoning in Hostetler, supra).
Finally, we find no merit in defendant's argument that the charge should have been dismissed because the double-yellow lines were, at various points, off-center, and constituted an illegal and unenforceable traffic signal. First, as Judge Ironson correctly observed, the placement of the double-yellow lines was not the issue. Defendant was not charged with failing to maintain the lane, as marked by the lines. See N.J.S.A. 39:4-88 (failure to maintain lane). He was charged with failing to stay right under N.J.S.A. 39:4-82.
Second, defendant misconstrues the impact of the Manual, and overlooks critical provisions of it. The statute contemplates exceptions to the Manual's standards; road markings must comply with the Manual standards only "so far as possible." N.J.S.A. 39:4-191.1 ("The Commissioner of Transportation may adopt a uniform system of markings . . . for use upon public highways . . . . Such a uniform system of markings shall correlate with and so far as possible conform to the current "Manual on Uniform Traffic Control Devices for Streets and Highways."); see also 23 C.F.R. § 655.603 (Manual, promulgated by Federal Highway Administration, is national standard for public streets and highways); cf. State v. Beierle, 325 N.J. Super. 395, 398 (App. Div. 1999) (citing N.J.S.A. 39:4-120 for proposition that Commission retains discretion regarding type and location of traffic control devices).
The Manual itself permits placement of lines at points other than the precise center of a roadway. See Manual on Uniform Traffic Control Devices for Streets and Highways § 3B.01 (2009 Ed. Rev. 1 & 2) (hereinafter MUTCD) ("Option: 02 Center line pavement markings may be placed at a location that is not the geometric center of the roadway."). The Manual also authorizes the option to place center lines on roadways like Hardscrabble Road. The Manual states that center line markings "should be placed" on urban arterials twenty feet wide or more with 4000 vehicles a day, and rural arterials and collectors eighteen feet wide or more with 3000 vehicles a day. MUTCD, supra, § 3B.01, 10. Although Hardscrabble Road varies between eighteen and twenty feet in width, and has roughly 2000 vehicles a day, according to the trial testimony, the Manual also provides, "Center line markings should also be placed on other traveled ways where an engineering study indicates such a need." Ibid. The Manual includes an explicit option, "Center line markings may be placed on other two-way traveled ways that are 16 feet or more in width." Id. at 12. Indeed, the Manual does not preclude placing center lines on even narrower roadways, although it states that care should be used in such cases because traffic may encroach on the pavement edge. Id. at 11.
In sum, Judge Ironson's findings of fact, amply supported by the record, satisfy the legal elements of the violation.