Fair Speed Limit Act: Flawed?

By Lawrence Simon

The proposal of a Fair Speed Limit Act is a positive move. However, the proposal as written contains a few flaws that need to be addressed before some unnecessary and nasty provisions get written into law. (This article is being printed because it reflects questions and opinions that may be held by many members. NMA responses (in italics) immediately follow each of Mr. Simon's points.)

First, why is a national speed limit policy needed? The prime thrust of all the argument over the last twenty years has been to get the federal government out of traffic law. Perhaps the best approach, at the federal level, would be to repeal the existing speed limit laws, and their attached subprovisions, and leave it at that.

Is a national speed limit policy needed? Probably not. Can we as motorists benefit from a national speed limit policy? Yes we can. Uniformity in and of itself is not necessarily evil. For the most part we benefit greatly from the fact that all traffic control devices must meet certain standards of uniformity. A stop sign in Texas has the same look, size and purpose as a stop sign in New York. There was a time, not so long ago when that was not the case. A person can travel from border to border and the traffic control devices have the same look and the same meaning.

This is a federal mandate enforced through the threat of withholding federal highway funds. The reason there is little conflict is because there is honest public consensus for this policy. The folks in Tennessee are not writing letters to Congress demanding the return of green stop signs or odd number speed limits. There are times when more flexibility should be exercised, for example the inexcusable coercion of California to double stripe many of its mountain roads making it virtually impossible to legally pass slow moving traffic. But, for the most part, the uniformity requirement for traffic control devices benefits motorists, improves safety and curtails governmental gimmicks to use signs and markings to extort money from unwary drivers.

Please keep in mind that the NMA is proposing a policy or technique for setting speed limits, not a specific speed limit. The policy we are proposing at the federal level is the same policy we endorse at the state and local level. State and local governments have total discretion for setting speed limits on "sub 55" roads. For the most part they do an incredibly poor job. A federal mandate would give motorists a lever to force states like NY, PA and the five other "55" holdout states to clean up their acts and set more reasonable limits. It would also raise havoc with local units of government that use speed enforcement in place of local taxes.

The second flaw has to do with the 85th percentile speed. Why do 85 percent of the people on a given road at a given time stay below a certain speed? People drive at a given speed because they are most comfortable at that speed for the particular circumstances at that time.

Based on this constantly changing environment, can we say that the 85th percentile speed is or ought to be the definitive and legally enforceable maximum for all conditions?

An 85th percentile speed limit with normal tolerances will accommodate 90-95% of all vehicles on the road. Persons who wish to drive at a slower speed, within their own comfort zone, are not constrained from doing so. Speed limits should reflect the maximum practical speed in good weather absent congestion or temporary problems with the highway. All states have some sort of reasonable and prudent requirement that supersedes the posted or statutory limits if conditions require slower speeds. Using 85th percentile speed limits may not be the perfect system for speed regulation but they are better than any other approach ever used.

The third flaw in your proposal is statutory speed limits. By definition these are absolute. They allow no deviation. The police love them. They get a clear number that they can measure. Never mind circumstances. Never mind capability. Never mind nothing. The law is the law. God has given us the speed limit: let us worship it.

The speed measurement equipment manufacturers love them too. Their products work perfectly in an atmosphere of absolute statutory certainty. The mind-set that supports statutory speed limits doesn't like to admit the existence of the gray areas where evaluation and judgement take precedence over rote mechanical performance.

Statutory speed limits are not by definition absolute. Statutory limits apply in the absence of posted speed limits. Statutory limits can be absolute or prima facie. The feds forced the states to make "55" absolute but that requirement did not necessarily apply to other statutory speed limits.

Speed limits pre-1974 were "prima facie," little more than suggestions actually, which didn't have much meaning in court. If the police couldn't prove that speed was unreasonable for conditions, then they hadn't proved it was illegal. And the presumption of innocence required them to prove it was unreasonable.

Speed limits prior to 1974 were not all prima facie, this varied from state to state. Speed limits were also more than just "suggestions." The author of the above article is mistaken in the application of prima facie speed limits. The violation of a prima facie speed limit meant you were guilty of speeding unless YOU COULD PROVE YOUR ACTIONS WERE NOT DANGEROUS OR UNSAFE. The burden of proof is on the state to prove you were driving in excess of the speed limit. The burden of proof that the defendant was not driving too fast for prevailing conditions is the defendant's responsibility.

Perhaps now the law should read: Speed shall be reasonable and proper, having regard for the width and surface condition of the road, the time of day, the weather, other traffic, and roadside conditions which may influence driving considerations.

All the conditions that determine the speed capability of a given road are already reflected in the exhibited 85th percentile speed. With the exception of high volume high speed highways that could justify the use of automated variable speed limit signs it would be impractical to attempt to post "maximum" speed limits for every possible change in external conditions.

In conclusion, if we are going to have speed limits, they have to be flexible enough to allow for the variable conditions of cars, drivers, and road as they actually exist. But if the speed limit is going to be sufficiently flexible that it loses physical and legal significance, why have it at all? Put me down on the side of individual responsibility,already a legal requirement,and driving competence, which can be taught and tested for.

Reality dictates that we are going to have speed limits on virtually all roads, streets and highways. Working within that reality it is our goal to establish fair and reasonable speed limits that will accommodate the vast majority of motorists. The establishment and implementation of the Fair Speed Limit Act would revolutionize speed regulation in the United States. The number of motorists that would object to 85th percentile speeds would be similar to those who want green stop signs.

Source: November/December 1994 NMA News

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