Road Law
Moving or non-moving?

By Jeff McConnell & James Mennella, Attorneys at law

As most drivers know, sometimes finding a decent place to park, let alone any place to park, is often difficult. Recently, there have been a lot of calls in reference to citations received by OOIDA members where they have been cited for parking violations.

In most cases, receiving a ticket for a parking violation isn’t a big deal unless points or a moving violation allocation will be entered on your driving record. The unfortunate thing is that, in some states, “parking” citations are actually point/moving violations.

Q. I received a citation in California for a non-emergency stop on the freeway. I called the clerk to ask what the fine was and to confirm that no points would be assessed against my license if I paid it. The clerk verified the fine and, much to my surprise, said that the violation carried one point. How can there be points for a non-moving violation?

A. The clerk is correct that section 21718(a) of the California Vehicle Code is a one-point violation according to the uniform bail and penalty schedule. Although it seems strange, it is a traffic and not a non-traffic violation the way it is enacted in the vehicle code. Not knowing the legislative history (if any) it is unknown to us why California allocates one point for what clearly seems to be a non-moving violation.

Since we probably won’t have any luck changing the uniform bail and penalty schedule before your court date, there are two ways to address the problem if you don’t want the points. First, is to request a trial by declaration (TBD), which is essentially trial by mail, or to request an in-person court hearing. One advantage of the TBD is that if you don’t get the result you want, you can request a trial within 20 days of the court’s decision so you really do get two bites at the apple.

Q. I received a citation while in Virginia for parking in a rest area. The officer said he gave me a break and cited me for failure to obey a highway sign and to just pay the violation as it would be no points. Is this true?

46.2-830.1. Failure to obey highway sign where driver sleeping or resting.
Upon the trial of a person charged with failure to obey a highway sign in violation of 46.2-830 where the court finds that the violation resulted from the vehicle having been parked or stopped by the driver on the shoulder or other portion of the highway not ordinarily used for vehicular traffic in order for the driver to sleep or rest, the court may, in lieu of convicting under 46.2-830, find the driver guilty of violating this section, which shall be a lesser-included offense of 46.2-830. No demerit points shall be assigned pursuant to the Uniform Demerit Point System for convictions pursuant to this section.

A. It depends. Any time you get a ticket you will want to check and make sure of a few things. First, is it a “serious” violation under the Federal Motor Carrier Safety Regulations? Second, will a conviction of the violation allocate points or be counted as a moving violation against my motor vehicle record? Last, will I suffer any employment or insurance ramifications if I pay the violation?

In this case, we have to look at the statute you are charged with. In Virginia, there are two statutes (Section 46.2-830 and 46.2-830.1) that are generally used for issuing highway sign violations. Section 46.2-830 is a moving violation and carries demerit points if convicted. Section 46.2-830.1 is a lesser included offense under Section 46.2-830 and is specific to drivers sleeping or resting and carries no demerit points.

If you have not been cited with 46.2-830.1, then you do not want to just pay the citation as you will receive demerit points if you plead guilty to 46.2-830. LL


Send any questions or comments regarding transportation law to: Jeff McConnell and James Mennella, Road Law, 3441 W. Memorial, Suite 4, Oklahoma City, OK 73134; call 405-242-2030, fax 888-588-8983, or email roadlaw@att.net.

This column is the opinion of the writer and does not necessarily reflect the opinions of Land Line Magazine or its publisher. Please remember everyone's legal situation is different. Consult with an attorney for specific advice on your situation.