Using the Shoulder to Pass a Car Turning Left. Is it Legal?

Written by Gregory Monte.

Pennsylvania – The Reasonable State

Back in April I wrote a blog post about how Pennsylvania was more reasonable than other states when it comes to its issuing speeding tickets: Speeding Tickets in PA – More Reasonable Than Many Other States.

Well, it turns out that my home state is also reasonable when it comes to allowing drivers to use the shoulder to pass left-turning cars. Unfortunately, I can’t say the same for other areas of the country. While I did not take the time to review all 50 state motor vehicle codes, I did discover that New York, California and Florida do not allow this action.  I imagine that if these “big three” don’t allow it then many others are in the same camp.

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Pennsylvania – Overtaking Vehicle on the Right

Title 75, Section 3304 indicates that a driver …

“… may overtake and pass upon the right of another vehicle only under one of the following conditions: (1) When the vehicle overtaken is making or about to make a left turn, except that such movement shall not be made by driving off the berm or shoulder of the highway.”

The way I read this statute, drivers ARE allowed to use the “berm or shoulder of the highway” in order to pass a vehicle turning left, but they cannot go off of that berm/shoulder (say, into the unpaved dirt/grass beyond the shoulder) when doing so.

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Using Court Cases to Support My Interpretation

Just to be sure that I was reading this statute correctly, I went over to Google Scholar to do some additional research.  If you are familiar with my strategy to beat traffic tickets, you will know that I never rely on my personal interpretation of the law to win in court.  I always back up my reading of the law with actual court cases.  In other words, I rely on the opinions of judges to support my point of view.

Sure enough, I found a couple of cases to back up my claim about being able to use the shoulder.  The first is Com. v. Wituszynski, 784 A. 2d 1284 – Pa: Supreme Court 2001.  In this case, an individual was stuck behind a line of traffic which was waiting for a flock of geese to move off the road.  The defendant, Wituszynski, got tired of waiting and then drove off of the road into a parking lot to get around that line of cars.  The Supreme Court of Pennsylvania decided that this action violated Section 3304 because the defendant did, indeed, drive off the shoulder in order to pass all of the vehicles:

“… [appellant] used a parking lot as an extra, unlawful lane. This would be considered off the berm or shoulder of a highway, the highway being Pearce Road….”

The second case, Hindle v. Commonwealth, Pa: Commonwealth Court 2012 was a lawsuit about an accident which occurred when a motorcycle tried to pass a vehicle that was turning left.  The PA Department of Transportation points out two things which I think are relevant.

1. “the highway consists of the travel lane and the paved portion of the shoulder or berm. “
2. “The unpaved area upon which Plaintiffs [the Hindles] attempted to travel is not part of the ‘highway’ where traffic is intended to travel …”

In essence, PennDOT was arguing that because the motorcycle went off of the shoulder to an unpaved part of the roadway, it improperly passed on the right in doing so.

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The Other States (NY, CA & FL)

Now that I have shown that Pennsylvania does allow the use of the shoulder when passing, I will quote the motor vehicle code from three other states which clearly do not allow this action.

New York, Section 1123 – “The driver of a vehicle may overtake and pass upon the right of another vehicle only under the following conditions:   1. When the vehicle overtaken is making or about to make a left turn … Such movement shall not be made by driving off the pavement or main-traveled portion of the roadway, except as permitted by section eleven hundred thirty-one of this article.

The “main-traveled portion of the roadway” does not include the shoulder – see the definition in Section 140.  Furthermore, Section 1131 contains a specific prohibition on use of the shoulder on “state controlled-access highways:

“… no motor vehicle shall be driven over, across, along, or within any shoulder or slope of any state controlled-access highway …”

California Section 21754 – “The driver of a vehicle may overtake and pass to the right of another vehicle only under the following conditions: (a) When the vehicle overtaken is making or about to make a left turn.”

But Section 21755 clarifies this allowance:

“The driver of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting that movement in safety. In no event shall that movement be made by driving off the paved or main-traveled portion of the roadway.”

Florida Chapter 316, Section 084 – “The driver of a vehicle may overtake and pass on the right of another vehicle only under the following conditions: (a) When the vehicle overtaken is making or about to make a left turn … The driver of a vehicle may overtake and pass another vehicle on the right only under conditions permitting such movement in safety. In no event shall such movement be made by driving off the pavement or main-traveled portion of the roadway.