Citation issued to suppress driver communication (video)

[erkme73]

I apologize for cross-posting. I also posted this under the Automobile section since it involves traffic court. But, given there are two issues here, I felt it best to put a copy here for any Constitutional experts.



The entire incident was recorded on my dash cam (installed several years ago after an incident where I had no witnesses).

[EDIT: Since I'm a new member, I can't post links. I've edited the URL, so you will have to cut/paste with it corrected.]

VIDEO: youtube[dot]com/watch?v=Ed7xiZeWrYk

The citation lists FL statute 316.2397.7 which reads:

(7) Flashing lights are prohibited on vehicles except as a means of indicating a right or left turn, to change lanes, or to indicate that the vehicle is lawfully stopped or disabled upon the highway or except that the lamps authorized in subsections (1), (2), (3), (4), and (9) and s. 316.235(5) are permitted to flash.
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The comment/note section of the citation states "IMPROPER USE OF HIGH-BEAMS". When watching the video, it is clear I did not use my high-beams.

When the Trooper initially stated that it was illegal to flash my lights to warn others of his location, not knowing any better, I assumed he was correct. I then tried to explain why I flashed my lights. He interrupted and would not let me explain.

I then asked what is illegal about warning others. This wasn't an admission of intent. I simply wanted to know what law made it illegal for motorists to communicate. He did not answer that question, instead, he described me using my brights.

A bit further in the stop, I again tried to explain that I turned my lights on and off - even attempting to show the difference between on/off vs. on and brights. That went no where as well.

My lights were turned on/off 5 times in approximately 5 seconds. Then, a few hundred feed further, again 4 more times - in about 5 seconds.

My defense, had I been afforded the opportunity to explain, was that my left light pattern appeared to have a slight wobble/flicker with the bumps in the road (as though the headlight was loose). To verify that it was my vehicle that was causing the pattern and flicker, I turned the lights on and off. In essence I was trouble shooting my equipment. I suppose I could have pulled over on a highway at night and tested it there, but figured this was safer. I have since gone to a local repair shop, and have documented that the light was not loose, and that it was adjusted.

Little did I know that the Trooper was right there as I was troubleshooting.

Now, I realize I did many things wrong in this stop. Namely, trying to defend myself when asked why I was illegally warning motorists. The Trooper seemed to be frustrated.

The ticket is only $101, and a non-moving violation. But, I want to challenge it on principle on the following basis:

1. I strongly believe that both the INTENT of statute 316.2397.7, and the manner in which it is written, describes flashing as an adjective, not a verb. In other words, the entire chapter references turn-signals, hazard lights, strobes, and other lights designed to flash - not manually causing a light to turn on and off. Otherwise, pulsing the brake pedal would cause the brake lights to "flash" illegally.
2. Assuming that I 'had' used my lights to signal other motorists, that is a form of communication - which I believe is protected by the 1st Amendment.
3. The illegal act was clearly defined by the Trooper as flashing my high-beams. Despite my attempts to explain and correct - even asking if would have made a legal difference - the Trooper wrote me for something I did not do. If he can't tell the difference between on and off, and high-beams, wouldn't his credibility be called into question?

At $101 fine, it is difficult for me to justify the expense of an attorney. Especially considering that it is a non-moving violation. Yet, I think one could make a strong case of 1st Amendment infringement.

Doing a search on 316.3297.7 in Google reveals many FL drivers who have been cited for signaling other drivers. The FHP is using this statute regularly to discourage communication.

At this point, I'm a bit uncertain on how to proceed. I think I have enough documentation to prove the officer was wrong, that my 'excuse' was legit, and that I wasn't signaling oncoming traffic. But, by showing my video, I am admitting guilt that I did turn my lights on and off. Technically driving without lights at night is another charge - one that is a moving violation.

So I may be making things worse by trying to fight the ticket.

Should I submit a motion for discovery to learn what the Trooper has for notes, and any audio/video recordings he may have made?

I don't want to cross-post, but I will try to find Constitutional sub-forum here, and post there as well.

Thanks!

 

[mightymoose]

Your First Amendment argument is pretty weak, at best.
If you are going to fight the citation then focus on the intent of the legislation, and that you believe it is being misused under these circumstances.
You should also get a copy of the driver's handbook published by your state, review your state statutes regarding passing vehicles,, or contact a driver's education instructor-- in California (VC 21753), and probably other states as well, drivers are taught to flash their lights when passing another vehicle. If you can find something that legitimizes the flashing of your headlights then you can torpedo this citation... and personally, I think your argument of pumping the brakes is a good one. Most people probably do not fight the citation. You might have a good amount of success if you give it a good shot.

 

[erkme73]

You bring up a very good point...

This is from the FL Driver's Handbook:

On a two-lane road, tap your horn, or at night blink your headlights to let the other driver know you are passing.

I guess this means it's ok to blink your lights on and off. But two-lane road means one-lane each way? The road I was on was two-lane, each way. Hard sell, I bet.

 

[erkme73]

Mighty - you are brilliant. I don't see the "thank you" button, or I'd click it 10x.

After your prompting, I did a little more digging in the FL statues. Here's what I found:

316.083 Overtaking and passing a vehicle.--The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions, and special rules hereinafter stated:

(1) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall give an appropriate signal as provided for in s. 316.156, shall pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle. The driver of a vehicle overtaking a bicycle or other nonmotorized vehicle must pass the bicycle or other nonmotorized vehicle at a safe distance of not less than 3 feet between the vehicle and the bicycle or other nonmotorized vehicle.

(2) Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle, on audible signal or upon the visible blinking of the headlamps of the overtaking vehicle if such overtaking is being attempted at nighttime, and shall not increase the speed of his or her vehicle until completely passed by the overtaking vehicle.

(3) A violation of this section is a noncriminal traffic infraction, punishable as a moving violation as provided in chapter 318.

Now, admittedly, I didn't use this argument at the traffic stop, but in both instances, I was overtaking a car on the left.

There are no provisions which limit the blinking of lights to a single-lane road - that's only in the handbook.

Also, this statue references headlamps as "blinking" not flashing. The entire 316.2397 section deals with lights that are designed to flash.

I suddenly feel much more confident. THANKS!

 

[erkme73]

Note: Found the 'thanks' button.

 

[mightymoose]

Good luck... if you do go to court just try not to sound like a smartypants that found a loophole.