does 148(5) apply to my situation

badtiming
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does 148(5) apply to my situation

Unread post by badtiming »

so i rear ended a truck that was over a slight hill and i tried to go to the left to pass him at the last moment and i ended up hitting him going 65km and he going 15km.

i wont go into detail with what happened other than i did get charge with careless even though i wasnt careless so i plan on fighting it with a paralegal.

so what i want to know is what is under follow to close and above 148(5) failure to turn to the left lane to avoid collosion"

and secondly does 148(5) apply to a single lane road in each direction one eastbound and one westbound lane. it ha a solid yellow lane which you still are legally allowed to cross if it is safe it isnt a solid white which you arent allowed to so where i tried to pass you could see a good 1.5km ahead on the oncoming side so its not illegal in this sense where you cant see whats ahead or see if there was oncoming traffic

i want my charge to get drooped down to 148(5) from careless becasue it is 2 points not 6 f i get a careless ill be dropped or even if i get follow to close ill get dropped my insusrance will only keep me if its a minor ticket.
so pretty much it wasnt a careless act it was a bad timing and bad reaction situation where i may of hit him but i wasnt distracted or not paying attention he was over the hill going 15km and i was 85 so ya i cant slow down when i finally come over the hill and see him and be like ya ill step on the brakes and try to avoid the flat bed knowing it wasnt going to happen and id rather kep my head on and not be decapitated. and it isnt fair if they charge me with follow to close as i wasnt to close i was a good 250-300ft back behind him then when i came over the hill and saw him braking i thought he was just slowing his speed ittle did i know he was stopping and then i swerved to the left to avoid him. didnt end up working so its not fair if i dont qualify for 148(5) because as one guy said it needs to be a double lamed road in each direction and yet if you look up 148(5) it doesnt say it has to be its not clear so if they dont charge me becasue i dont qualify for 148(5) ill get follow to close and yet that again is not fair becasue i WASNT TO CLOSE it was a 5 second window tat closed very fast and didnt end well

PLEASE respond as to what the 148(5) covers and if on a single lane road which a good chunk of this province is made up of applys to my situation one guy said oh "its the prosecturors choice if he thinks its ok or not on a double lane or a single lane" i call BS as it isnt the proseutor who makes the law they enforce it as fair and they cant manipulate it to there own words if it says in 148(5) move as far to the left as necessary to pass safely and that would then mean in a single lane road to go to the oncoming lane to do so then wheres the problem it doesnt say which lane or how many lanes just says move as far to the left as may be necesarry and in my case as "necessary " is the oncoming lane !!! please respond asap as im going to xcopper tomorrow and if im not happy with the way they act ill go to OTT legal


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highwaystar
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Re: does 148(5) apply to my situation

Unread post by highwaystar »

It all depends on how much the prosecutor believes from you. After all, are they really going to believe that you were in the process of overtaking the truck? More likely, they are going to think that you were actually driving straight through and would have continued to do so, but for the accident. However, if the prosecutor buys your story that you were intending to overtake the truck on the left just at that moment, then they SHOULD be able to offer you section 148(5). If they don't offer you section 148(5), then, you're SOL!

Since you claim 'follow too closely' also doesn't apply, then you're really stuck with careless driving. The fact that you are going over an incline where your visibility for traffic was affected will negate many of your available defenses such as 'mere inattention', etc.. After all, the 'due care' obligation would reasonably mean you should have significantly slowed down to be able to react to anything. Clearly you did not. So, the careless driving charge is perfectly valid!

As for section 148(5), as you stated, the prosecutor does not make the law. The law is currently inconsistently interpreted by the courts. That is quite common until it is better tested in the court. Now, if someone wanted to they could continue to appeal their case to the Ontario Court of Appeal to finally get the Appeal court to provide some clarity on the section, as is commonly done with law. But, that takes years to occur! Until such time though, you're going to get different interpretations. So, don't take it personally if the prosecutor you are dealing with disagrees with your paralegal's interpretation. It happens all the time. Plus, just because there is no clear answer doesn't mean anyone is wrong or doesn't know what they are talking about----quite the opposite, they are so informed that they know the precise status of the law. They aren't just spewing one-sided positions.

Regardless, it seems to me like you've already made up your mind on what you want to do anyway. It doesn't really matter what anyone tells you so that you can truly make an informed decision. It is what is! So, simply put the matter in the hands of your paralegal and cross your fingers. Hopefully they'll get you the results you want. Good luck!


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