John G. Browning 2015-06-02 12:39:45
Life in the Fast Lane Drivers use everything from inflatable dolls to stuffed animals in infant seats to hoodwink police patrolling the roads. Like many lawyers who make that early morning commute from a sleepy suburb to a large downtown office tower, I often gaze wistfully at the cars speeding past me in the high-occupancy vehicle lane as I inch along in bumper-to-bumper traffic. The deejay on the oldies station seems to silently mock my plight as he plays a medley of “One” (Harry Nilsson), “All By Myself” (Eric Carmen), and “So Lonely” (the Police). If only I had a passenger with me, I think—not for any carbon-footprint- reducing, “let’s-carpool-and-save-the- planet” kind of reason, of course. I just want to go faster than two miles per hour, and the HOV lane beckons. But, I’m too scared of getting caught and having to think of a clever rejoinder to the burly motorcycle cop’s “Who’s in the passenger seat, the Invisible Man?” admonishment. That’s not to say that people in such a predicament haven’t tried everything under the sun to avoid getting a ticket in the first place or to fight one that’s already been issued. Police officers patrolling HOV lanes have reported drivers using everything from mannequins and inflatable dolls to stuffed animals in infant car seats and even knit caps on pillows in an effort to fool law enforcement. According to one 2007 article, then-Houston Metro Police Chief Tom Lambert said that officers don’t confiscate the phony “passengers,” but they do make a note of which violators use such ruses and “they go into our records.” Earlier this year, a motorist driving in the HOV lane of I-5 in Tacoma, Washington, was pulled over when a state trooper recognized a familiar-looking face in the passenger seat. That “passenger” was a life-size cardboard cutout of the Dos Equis beer pitchman, a.k.a. “The Most Interesting Man in the World.” The driver received a $124 ticket for “the most interesting carpool lane ruse in the world,” but got to keep his cardboard companion. Stay thirsty, my friends. Even more complex constitutional conundrums have played out in the fast lane as people try to avoid tickets. On November 8, 2005, Candace Dickinson of Arizona was cited for using the carpool lane without a passenger. When directing the officer’s attention to her obvious pregnancy didn’t get her out of a ticket, Dickinson took her argument that the unborn fetus was a “passenger” to court. Municipal Judge Dennis Freeman rejected this, saying that both the intent of the law and the plain meaning of the word “passenger” referred to someone who occupied a “separate and distinct ... empty space in a vehicle.” Unfortunately for Dickinson, Judge Freeman didn’t feel that her womb qualified under the law. Moreover, he pointed out, accepting her argument would place police officers in the delicate position of having to carry pregnancy tests with them to detect phony excuses, saying, “I don’t think we want to go there.” Of course, Dickinson’s failure to persuade Judge Freeman hasn’t stopped women in other states from trying the “pregnancy-makes-two” theory, albeit with an apparent lack of success to date. Just in case pondering the legal status of the unborn doesn’t cause enough constitutional headaches, at least one person has advanced the novel argument that he was not “alone” because he had a set of corporate papers in his car, and since a corporation is legally regarded as a “person,” there was no violation because the car was occupied by two “people.” In October 2012, Jonathan Frieman was cited for driving in the Highway 101 carpool lane in Marin County, California. Facing $478 in fines and costs, Frieman argued that because Section 470 of the state’s vehicle code defines “person” to include “a natural person, firm, copartnership, association, limited liability company, or corporation,” the corporate papers (for his charitable foundation) in his car got him off the hook. Frieman’s ulterior motive was to garner publicity for his objection to the U.S. Supreme Court’s still-controversial 2010 Citizens United decision, which held that corporations, as legal “persons,” have First Amendment rights and so their political spending cannot be restricted. While he may have gotten the publicity that he sought, ultimately Frieman’s argument didn’t carry the day with Marin County Traffic Referee Frank Drago. Besides, such an argument just opens up an even bigger can of worms. Corporations are usually domiciled where their principal office and leadership team are located; to date, I don’t know of any that have claimed “front seat of Jonathan Frieman’s car” as a corporate headquarters. And if that corporation is really a “person” and occupants of a vehicle have to wear seatbelts, then we raise the inevitable question of whether the corporate papers were strapped in. Click It or Ticket, Union Carbide! So, for those of you envious of the folks in that fast-moving HOV lane as you crawl along to work, leave the dummies and blow-up dolls at home and exile the constitutional “what if’s” to a law professor’s exam hypothetical. Just invite a buddy to carpool with you. JOHN G. BROWNING is a partner in Passman & Jones in Dallas, where he handles commercial litigation, employment, health care, and personal injury defense matters in state and federal courts. He is an award-winning legal journalist for his syndicated column, “Legally Speaking,” and the author of the Social Media and Litigation Practice Guide and a forthcoming casebook on social media and the law. He is an adjunct professor at Southern Methodist University Dedman School of Law.
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