Did South Carolina’s move-over statute cover a traffic stop with only police vehicles present?

Plain-English summary

The AG’s office was asked to revisit its earlier opinion to a magistrate about drivers approaching stationary emergency vehicles. The question was whether the statute applied when only police vehicles were present at an ordinary traffic stop, without other emergency crews. After further review, the AG concluded that the provision could be read to include those stops. He relied in part on the act’s title and the definition of an authorized emergency vehicle, which included a police vehicle responding to a traffic incident.

The AG acknowledged contrary interpretations elsewhere and the absence of a South Carolina court decision construing the provision. Because violation of the provision was a criminal misdemeanor, he recommended legislative clarification rather than presenting the interpretation as settled.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the AG think the move-over rule could apply to a police-only traffic stop? A: Yes. On review, he concluded the statute could be read to cover a stop with only law-enforcement vehicles present.

Q: What feature of the statute supported that reading?
A: Its definition of emergency vehicle included a police vehicle authorized to respond to a traffic incident, and the act’s title referred to approaching a stationary emergency vehicle.

Q: Was the interpretation settled by a South Carolina court? A: No. The AG said no court in the State had construed the provision and recommended clarification by the Legislature.

Background and statutory framework

The opinion revisited a prior letter after attention was drawn to subsections addressing drivers approaching an emergency scene or stationary emergency vehicle. It considered the statute’s definitions, a 2002 amendment’s title, and the possibility that an ordinary traffic stop was not an emergency response. The AG favored coverage of police-only stops while recognizing ambiguity in a criminal law.

Citations and references

Statute discussed: S.C. Code Ann. § 56-5-1538. Act discussed: Act No. 348 of 2002.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-3-2007-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/ferguson-g-t-12-3-07-os-8510-traffic-stop-with-only.pdf

Original opinion text

December 3, 2007

The Honorable G. T. Ferguson
Magistrate, Abbeville County
P. O. Box 1156
Abbeville, South Carolina 29620
Dear Magistrate Ferguson:
This office has been asked to review the opinion to you dated October 9, 2007 which dealt with S.C. Code Ann. § 56-5-1538. The question had been raised as to whether such provisions apply to a traffic stop with only law enforcement vehicles present and no emergency crews or vehicles present. In particular reference has been made to subsections (F) and (G) of such statute which state
[t]he driver of a vehicle shall ensure that the vehicle is kept under control when approaching or passing an emergency scene or authorized emergency vehicle stopped on or near the right-of-way of a street or highway with emergency lights flashing. The exercise of control required for a driver to comply with this section is that control possible and necessary by the driver to prevent a collision, to prevent injury to persons or property, and to avoid interference with the performance of emergency duties by emergency personnel. A person driving a vehicle approaching a stationary authorized emergency vehicle that is giving a signal by displaying alternately flashing red, red and white, blue, or red and blue lights, or amber or yellow warning lights shall proceed with due caution, significantly reduce the speed of the vehicle, and (1) yield the right-of-way by making a lane change into a lane not adjacent to that of the authorized emergency vehicle, if possible with due regard to the safety and traffic conditions, if on a highway having at least four lanes with not less than two lanes proceeding in the same direction as the approaching vehicle; or (2) maintain a safe speed for road conditions, if changing lanes is impossible or unsafe. Subsection (H) provides that an individual violating such provisions is “guilty of the misdemeanor of endangering emergency services personnel.” The term “emergency services personnel” is defined

The Honorable G. T. Ferguson
Page 2
December 3, 2007
by subsection (I)(2) as “...fire, police, or emergency medical services personnel (EMS) responding to an emergency incident.” (emphasis added). Again, the question has been raised as to whether such provisions would make Section 56-51538 applicable to a traffic stop with only law enforcement vehicles present. Based upon my review, no courts in this State have construed such provision. Also, based upon our research, at least two authorities have concluded that an ordinary traffic stop does not constitute an “emergency response” See: California Highway Patrol v. Superior Court of Alameda County, 135 Cal.App.4th 488 (Cal.App.1Dist. 2006); Op. Va. Atty. Gen. dated September 23, 2004. However, based upon our further review, it is now our conclusion that Section 56-5-1538 could be read to include traffic stops with only law enforcement vehicles present. Support for such conclusion is found in the title to Act No. 348 of 2002 which states that such is an act TO AMEND SECTION 56-5-1538, RELATING TO THE MANAGEMENT OF AN EMERGENCY SCENE...TO REQUIRE THE DRIVER OF A VEHICLE WHEN APPROACHING A STATIONARY EMERGENCY VEHICLE TO PROCEED WITH DUE CAUTION AND TO YIELD THE RIGHT-OF-WAY UNDER CERTAIN CONDITIONS.... The term “emergency vehicle” is defined by subsection (I)(1) to include “...any ambulance, police, fire, rescue, recovery, or towing vehicle authorized by this State, county, or municipality to respond to a traffic incident.” (emphasis added). Therefore, traffic stops with only law enforcement vehicles present would be included. Nevertheless, to resolve any question of ambiguity, it is suggested that legislative clarification be sought to resolve the issue with finality in light of the fact that such provision is a criminal statute. With kind regards, I am, Very truly yours, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook
Assistant Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General