People v. Butler (1978)

[Crim. A. No. 16049. May 9, 1978.]

THE PEOPLE, Plaintiff and Respondent, v. RONALD RAY BUTLER, Defendant and Appellant.

(Opinion by Cole, P. J., with Bigelow, J., concurring. Separate dissenting opinion by Pacht, J.)

COUNSEL

Stephen R. Butler for Defendant and Appellant.

John K. Van de Kamp, District Attorney, Donald J. Kaplan and Dirk L. Hudson, Deputy District Attorneys, for Plaintiff and Respondent.

OPINION

COLE, P. J.

Vehicle Code section 21658 fn. 1 states "Whenever any roadway has been divided into two or more clearly marked lanes for traffic in one direction, the following rules apply: ¶(a) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety ..." (Italics added.)

Appellant was convicted of violating this section. The trial court found that appellant failed to drive within a single lane but also held that there was no showing that any movement of appellant's vehicle was in any way unsafe.

[1] The sole question presented on this appeal is whether the emphasized word "and" is to be read in the conjunctive, with the result [81 Cal. App. 3d Supp. 8] that appellant's conduct did not violate the statute, or whether it is to be read disjunctively, as the trial court read it, so that a violation occurs either when a driver straddles a lane or when he changes lanes unsafely. We agree with the trial court and affirm.

Section 21658, subdivision (a), is in that portion of the Vehicle Code defining "rules of the road." Section 40000.1 provides that, with exceptions not relevant here, it is unlawful and constitutes an infraction to violate any provision of the Vehicle Code. It is our view that section 21658, subdivision (a), simply states two affirmative duties placed upon the operator of a motor vehicle. One of these is to drive as nearly as practicable entirely within one lane. A separate duty is not to move from that lane until the movement can be made with reasonable safety.

It has been stated with respect to the predecessor to section 21658 (former § 526) that it "is plainly intended to regulate the use of lanes, and not the making of turns ..." (Moore v. Miller (1942) 51 Cal. App. 2d 674, 682 [125 P.2d 576].) That purpose is carried out by interpreting the requirements of the statute in the disjunctive. This conclusion is confirmed by Moore itself, where the court said "It is contended that defendant violated this provision both when he swerved to the right and when he turned to the left. Upon the evidence it seems more likely that defendant's swerve to the right brought him into compliance with this provision of the code, for he had previously been straddling the line between two lanes ..." (Ibid italics added.)

It is true that the word "and is often used in the conjunctive. To so interpret it here would mean that motorists were free to ignore lane markings so long as they did not make an unsafe movement. Such an interpretation would have clearly deleterious effects on the ordinary flow of traffic. It is not compelled since, to carry out the legislative intention "and" can be interpreted as meaning "or." (Bianco v. Ind. Acc. Com. (1944) 24 Cal. 2d 584, 587 [150 P.2d 806] and cases there cited.) We interpret "and" as used in subdivision (a) of Vehicle Code section 21658 to be read as "or."

The judgment is affirmed.

Bigelow, J., concurred. [81 Cal. App. 3d Supp. 9]

PACHT, J.

I dissent.

While authority cited by the majority notes that "and" can be interpreted as "or" to fulfill manifest Legislature intent, the authority becomes inapposite when applied to this statute and these facts.

The statute Vehicle Code section 21658, subdivision (a), as written: "A vehicle shall be driven as nearly as practical entirely with in a single lane and shall not be moved from the lane until such movement can be made with reasonable safety" (italics added) clearly is meant to treat with both traffic flow and safety.

If the Legislature meant anything, it meant to prevent unsafe lane changes.

It is physically certain that a driver cannot change lanes without straddling for some distance. The statute gives no maximum distance so we must assume the "and" is a call for safe movement.

The trial court commendably noted that there was no unsafe movement by the defendant in this case. Had the Legislature wanted to forbid lane-straddling even in safe situations, it could have done so. The word "and" in my opinion was not an inadvertence. I would reverse the judgment.

FN 1. All statutory references herein are to current or former Vehicle Code or its predecessor.