Trial strategy for Pass Off Roadway HTA 150(2)

Preparing to defend myself at trial, searched for 150(2) threads and defense strategies but did not find much. I was travelling on a paved 2 lane county road, vehicle ahead slowed, signalling left and started moving to left. An oncoming vehicle crested a hill so turning vehicle stopped abruptly. I had anticipated their turn and may or may not have been able to stop safely so instead of an emergency stop I moved to right to pass them, oncoming vehicle passed same time I did. Looking through the turning car I could see the officer and door of the cruiser as it passed. He turned around and issued me a 'permit' for pass off roadway.

Met prosecutor, no alternate or lesser charges for this particular offence. I have received disclosure and there is very little information, it says car was waiting to turn on hill, I passed on right, and that I was polite but not too much more. He did make note that the gravel shoulder was 3 feet wide (he did not measure then) but it is over 5 feet (I went back to confirm). Nothing obvious to challenge on the ticket or notes. My thought is that because he passed at the same time it is impossible for him to see if my tires were on gravel at any time. I will measure lane width (take photos) and get specs of my vehicle and the turning vehicle width. My plan is to demonstrate there was sufficient space to pass on the paved portion and he was unable to see my tires at the time that it might be enough to drop the charge. It would be pretty tight mathematically.

My question is will I just be setting myself up for a different charge because I am saying in court that I passed a vehicle on the right and used the same lane to do so? Would appreciate any feedback or thoughts on how to best to approach this situation without stepping on any obvious or not so obvious land mines as I am not well versed in court processes.

As an aside my other thought would be to pursue a safety angle that I made the pass because A) the unexpected change of car stopping necessitated me passing on right to avoid rear ending them or B) in a vehicle sitting higher up than the car I could see oncoming vehicle and was worried of a pending collision that would push turning vehicle into me so I passed to get clear of scenario.

Tallguy

Tallguy wrote: Mon Mar 25, 2019 12:38 pm

As an aside my other thought would be to pursue a safety angle that I made the pass because A) the unexpected change of car stopping necessitated me passing on right to avoid rear ending them or B) in a vehicle sitting higher up than the car I could see oncoming vehicle and was worried of a pending collision that would push turning vehicle into me so I passed to get clear of scenario.

Wouldn't work. The argument against would be if you were concerned enough about safety in the first place, you would have created a safe distance between you and the driver in front of you from the start. Ultimately, you created the unsafe situation because you are the one responsible for leaving a safe distance, not the driver in front.

Wouldn't work. The argument against would be if you were concerned enough about safety in the first place, you would have created a safe distance between you and the driver in front of you from the start. Ultimately, you created the unsafe situation because you are the one responsible for leaving a safe distance, not the driver in front.

Thanks for your reply, I suppose similar argument could be made (me being too close) if I was stopped behind them and passed to avoid a pending collision with oncoming vehicle where they could be pushed into me. This is really a secondary thought if my initial strategy is flawed.

My primary approach is still the issue of officer not being able to see my tires to verify if I left the paved portion of the roadway while passing. Is it illegal to pass a vehicle in the same lane if done safely (there is only a small paved shoulder so I was using a portion of their lane)? He did not opt to charge me with Pass On Right Not in Safety 150(1).

Is part of the shoulder paved? Subsection 150 (3) allows a driver to pass in the manner you did when the vehicle ahead is turning left or the driver has signalled an intention to turn left and the shoulder is paved. If some of it is, you may be able to raise the argument that you reasonably believed the rest of the shoulder would be.