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charged with 119 km in an 80 Km while passing....
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PostPosted: Mon Nov 29, 2010 11:22 am 
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Travelling north on Hwy 41 coming into Nappanee. Followed a car that was driving very erratically for approximately 8 km - all over road and driving between 60-70 km. Directly before you come into Nappanee there is a very short passing lane (500-600 metres). Straight stretch of road but you are coming into an oncoming hill. Of note there are no signs indicating you are coming into Nappanee - nothing - just what looks to be an opportunity to overtake a slow moving vehicle safely. As soon as I got up beside vehicle a car breaks the horizon of the hill so instinctively I sped up - apparently to 119Km - of course it’s a cop - he pulls over on his side of road and waves me to pull over on mine. I explain that I honestly thought the driver was drunk and was staying behind as much as possible (6/7 car lengths). I asked officer if he noticed the line of traffic behind car - he said yes. He did not have the other cars speed and told me he picked mine up off his antenna - but only had the one reading (I thought they needed two readings). He told me in no uncertain terms that you cannot speed to pass – which has been confirmed based on other posts here. The problem is that based on my calculations there is no way to safely pass a car doing 65Km while doing 80km in the amount of road allotted - not if a car comes over the hill "after" you have started to pass. It would take me approximately 14 secs at a rate of 22.22 metres/sec (308 metres) to pass a car doing 70 km while driving 80km – keep in mind there is a like car – theoretically approaching at a minimum 80 km bearing down at the same meters/sec. The intersection point occurs prior to overtaking the slower moving vehicle. Is there no onus on the highway markings that offer a passing lane (single dotted line) when it is physically impossible to do so? I can only assume had I actually done 80 km and swerved to miss the police van or simply ran head-on into him he would have charged me with careless driving???? BTW – within a 2 km stretch after my ticket I counted no less than 3 cars pulled over and being ticketed on the 401 – obviously an end of month ticket blitz. Any insight here would be greatly appreciated – I plan on fighting this.


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Re: charged with 119 km in an 80 Km while passing....
PostPosted: Mon Nov 29, 2010 11:27 am 
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me again :( - and why would they even offer a passing lane coming directly into speed reduction (80 to 60) - first thing the cop said was - lucky it wasn’t 50 metres more - I would be impounding your vehicle right now?????


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Re: charged with 119 km in an 80 Km while passing....
PostPosted: Mon Nov 29, 2010 12:06 pm 
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would a "Defence of Necessity" not apply here? In my opinion if I hadn't sped up I would have run into the oncoming police van - my calcualtions clearing show that to be the case....

-a) There must be 'clear and imminent peril' calling out for action without deliberation
-b) There must be no reasonable legal alternative to the illegal act
-c) The harm inflicted by the illegal action must be less than would be present if the 'clear and imminent peril' were manifested
-d) If the harm which forms the basis for the defence was clearly foreseeable and avoidable at an earlier time without any illegality, the defence is unavailable.


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Re: charged with 119 km in an 80 Km while passing....
PostPosted: Wed Dec 15, 2010 10:29 pm 
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Obviously the officer was more focused on issueing tickets than worrying about public safety. One would think he should have thought to himself there was an impaired driver on the road who was weaving and swerving, and as part of public safety he should have gave chase to investigate, or be held accountable if a fatality had occured up the road after it was reported to him about the observations. NOPE easier to just get that ticket issued and be in good with the sargent at the end of the month.


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Re: charged with 119 km in an 80 Km while passing....
PostPosted: Wed Dec 15, 2010 11:05 pm 
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Location: The Valley
I'm not reading a lawful defence here...


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Re: charged with 119 km in an 80 Km while passing....
PostPosted: Wed Dec 15, 2010 11:28 pm 
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Markamp wrote:
Travelling north on Hwy 41 coming into Nappanee. Followed a car that was driving very erratically for approximately 8 km - all over road and driving between 60-70 km. Directly before you come into Nappanee there is a very short passing lane (500-600 metres). Straight stretch of road but you are coming into an oncoming hill. Of note there are no signs indicating you are coming into Nappanee - nothing - just what looks to be an opportunity to overtake a slow moving vehicle safely. As soon as I got up beside vehicle a car breaks the horizon of the hill so instinctively I sped up - apparently to 119Km - of course it’s a cop - he pulls over on his side of road and waves me to pull over on mine. I explain that I honestly thought the driver was drunk and was staying behind as much as possible (6/7 car lengths). I asked officer if he noticed the line of traffic behind car - he said yes. He did not have the other cars speed and told me he picked mine up off his antenna - but only had the one reading (I thought they needed two readings). He told me in no uncertain terms that you cannot speed to pass – which has been confirmed based on other posts here. The problem is that based on my calculations there is no way to safely pass a car doing 65Km while doing 80km in the amount of road allotted - not if a car comes over the hill "after" you have started to pass. It would take me approximately 14 secs at a rate of 22.22 metres/sec (308 metres) to pass a car doing 70 km while driving 80km – keep in mind there is a like car – theoretically approaching at a minimum 80 km bearing down at the same meters/sec. The intersection point occurs prior to overtaking the slower moving vehicle. Is there no onus on the highway markings that offer a passing lane (single dotted line) when it is physically impossible to do so? I can only assume had I actually done 80 km and swerved to miss the police van or simply ran head-on into him he would have charged me with careless driving???? BTW – within a 2 km stretch after my ticket I counted no less than 3 cars pulled over and being ticketed on the 401 – obviously an end of month ticket blitz. Any insight here would be greatly appreciated – I plan on fighting this.


If you try to reason with the law/bylaw you will always lose.

The necessity can only happen, when you are obeying the law.

You where doing 80 and nicely passing the other cars.
Then you see the police car coming at you, so you have to speed up to get out of the way.
Take all your math stuff too.And pics if you have any.

Cheers
Viper1

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Re: charged with 119 km in an 80 Km while passing....
PostPosted: Thu Dec 16, 2010 12:26 am 
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IMO, defence of necessity does not apply here. If you were in a life-threatening emergency, yes, you could speed... BUT this scenario does not count. The reason being, you chose to pass a drunk driver. The Crown will become quite theatrical and ask, with incredulous flair: "You PASSED a drunk driver? So, you risked getting sideswiped by a driver who, by your own admission, was ALL OVER the road... and then you put yourself in front of an erratic driver, who now, if you had to stop ahead, would quite possibly rear-end you?" So the passing manoeuvre was not necessity, but choice. Also, they'll point out that the yellow lines on the roadway are only guidelines with respect to passing. The court will likely point out that if you, as the driver, saw the passing zone was too short, you should have not attempted to pass, or abandoned it ASAP. Stupid passing zone? Perhaps. But, nonetheless, it's still the driver's decision to use it or not - and a lot of your testimony is going to be used against you. When you saw the oncoming cop car, they'll argue that you should have slowed down and got back in line - not accelerated. Sucks, but that's what the law is.

This speeding ticket is best fought on technicalities (if there are any), or a plea-bargain. I just don't see how defence of necessity has a chance of working here.

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