Many drivers assume that slowing down when they pass a stopped emergency vehicle is exactly what the law asks of them. An Appellate Term decision confirms that's not quite right — the Move Over Act imposes a separate, affirmative duty to change lanes when it's safe to do so, and easing off the gas doesn't substitute for it.
The Facts of the Case
At 10:45 p.m. on March 30, 2017, a New York State trooper was conducting a traffic stop on the Palisades Parkway, with his emergency vehicle's lights on, stopped at the side of the road. Kohl's vehicle approached in the lane immediately adjacent to the trooper's car. The trooper testified there were no other vehicles preventing Kohl from changing lanes — but Kohl never moved over.
At trial, Kohl testified that he had slowed down as he approached, and that he couldn't move to the next lane because the road was wet, it was dark, and he was tired. The Justice Court, Town of Clarkstown, convicted him of violating Vehicle and Traffic Law § 1144-a(a) and ultimately fined him $150. Kohl, representing himself, appealed.
The Question on Appeal
Two questions were before the Appellate Term: did the conditions Kohl described excuse his failure to move over, and did slowing down satisfy the statute's due care requirement even without a lane change?
Case on Point
The Appellate Term affirmed the conviction, holding that the trooper's testimony — that no other vehicles prevented Kohl from changing lanes, and that he failed to do so — established a prima facie violation of the Move Over Act. The court held that being tired, driving in the dark, and a wet road did not, under the circumstances, reasonably constitute conditions preventing Kohl from exercising due care by moving over. It further held that slowing down was not an acceptable alternative to actually changing lanes where it was safe to do so.
People v. Kohl, 62 Misc.3d 26 (2018)
Why Slowing Down Wasn't Enough
The statute's language is specific: due care "shall include, but not be limited to," moving out of the lane adjacent to a stopped emergency vehicle. The Appellate Term treated that as a real, affirmative requirement — not one of several equally acceptable ways to show caution. Kohl's decision to slow down may have reduced risk in the moment, but it didn't fulfill the specific duty the statute imposes when a lane change is actually possible.
The court applied the same logic to Kohl's excuses about conditions. General bad weather, darkness, and fatigue are common on the road — but the court required a connection between those conditions and an actual inability to change lanes safely, not just discomfort or added caution. Since nothing in the record showed those conditions made a lane change genuinely unsafe, they didn't excuse the failure to move over.
Key Takeaway: The Move Over Act asks for a specific act — moving to another lane when it's safe — not just general caution. Slowing down, driving carefully, or citing rough conditions in the abstract won't satisfy the statute unless the driver can tie those conditions to why a lane change specifically wasn't safe.
What This Means for a Defense
Kohl sharpens the same questions raised in earlier Move Over Act cases, at a higher level of authority:
- Was a lane change actually unsafe, or just uncomfortable? General references to weather, darkness, or fatigue aren't enough — the defense needs a specific, concrete connection to why moving over wasn't safe at that moment.
- Did the driver do more than slow down? Reducing speed is not treated as an alternative form of compliance. If a lane change was possible, the statute expects it.
- Was there actually room to move? As in Krahforst, the strength of the officer's testimony about clear lanes and available space tends to be decisive.
Cited for Slowing Down Instead of Moving Over?
Slowing down near a stopped emergency vehicle feels like the safe, cautious thing to do — but New York law treats it as a separate duty from actually changing lanes. Find out where your case stands.
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