The Law, Best Practices and Safety.

Chad Dornsife, Executive DirectorBest Highway Safety Practices Institute

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California Chapter of ATSSA Meeting (American Traffic Safety Services Association)

November, 03 2010 • Costa Mesa, CA

E Pluribus Unum

• The Rights of the Individual, the General Welfare of the Nation, Fair Laws and Public Safety have One Master – the US Constitution

• It’s mandates are clear as to how to accomplish each of these desired ends, without a single new law.

• The most incredible fact, ask any legislator, agency administrator, practitioner, the judiciary or a lawyer to describe our system and laws, and in each and every instance they will give you a different WRONG answer.

• YES! 100 percent get it WRONG, with conviction…

• Each is steeped in their own discipline, but none have an understanding of how all the parts interact or their responsibilities under our laws to assure both the needs of the state and the rights of the individual are met.

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The Law of the Land

• Welcome to the world of transportation law, competing interest and disciplines, standards and the rights and safety of the individual.

• The brilliance of our Founding Fathers cannot be overstated here.

• Creating a Republic, governed by the consent of the governed.

• Where the Rule of Law and your Rights trump majority rule

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The Law of the Land

• Under our Rule Of Law Fundamental Rights cannot be impinged, and they’re protected by Substantive and Procedural Due Process, Equal Protection, Supremacy, Commerce, Confrontation Clause(s), Void for Vagueness doctrine, Habeas Corpus, 1st, 4th, 5th, 6th, 9th and 14th Amendments.

• Per the Highway Safety Act of 1966 and Congress’ invocation of the Commerce Clause the field of “Highway Safety” became the domain of Congress - Federal.

• Under the color of federal law all acts by a federal agency or the exercise of police powers by an inferior authority shall be in substantial conformance with the U.S. Constitution governing federal regulations et al

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Transportation LAW

• Article 1 Section 8 delegated to Congress the General Welfare of the Nation including National Defense, Commerce & Post Roads (transportation), powers not enumerated to the states.

• 19th Century Railroads, Telegraph & Navigable Waterways

• Early 20th Century the federal state partnership matured

• In 1920’s we organized the MUTCD and UVC

• 1940’s the 80 to 90th percentile speed became our standard

• Federal Standards were primary only during construction

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Transportation LAW

• 1956 Eisenhower’s’ National Defense & Interstate System

• Travel for the first time becomes ubiquitous

• As travel increased so did the need for uniformity

• 1966 Congress invoked the Commerce Clause when it passed the Highway Safety Act of 1966

• Bureau of Roads became USDOT: NHTSA, FHWA

• The Highway Safety Act of 1966 et al as adopted by Congress created a new paradigm for the Nation’s traffic laws and its phased-in mandates encompassed all of us; individuals, law enforcement, public entities, the courts and the USDOT.

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Federal Supremacy

• US Department of Transportation (USDOT) included the new Federal Highway Administration (FHWA) that was responsible for roadways and traffic control and the Manual on Uniform Traffic Control Devices (MUTCD); and the new National Highway Traffic Safety Administration (NHTSA) that was assigned drivers, vehicles and oversight of the Uniform Vehicle Code (UVC).

• The “U” in the MUTCD and UVC is the term “uniform”, which is implicit in all federal acts and regulations per the Constitution.

• Unnoticed - legal effect over the next 30 years this Act displaced the 10th Amendment in this field

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Federal Supremacy

• 1971, “shall,” “should,” and “may” requirements were added. Substantively and procedurally the term “Standard” and word “shall’ became synonymous; “Guidance’ and “should” are in-fact a “shall” starting place, that can be modified by a licensed traffic or civil engineer applying only nationally recognized engineering standards and practices; and “may” or “Option” are also synonymous applying nationally acknowledged engineering judgment.

• Irrespective of how an individual state or territory accomplished it, all jurisdictions “shall” comply within two years and bring all nonconforming devices into conformity, US 23 CFR 655.603(b)(d).

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Federal Supremacy

• 1974 Confusions Begins – Congress enacts National Speed Limit

• 1978, the governing US Code Title 23 et al mandated that all traffic control devices were to be uniform in appearance etc, and non-complying devices were to be removed from all roads open to public travel.

• 1988, this Act required all practices, applications and expectations to be based in fact, and to be uniformly applied.

• 1995, Congress repeals NMSL, extant law in full effect and state’s 10th amendment authorities fully displaced or superseded in this field.

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Uniformity implicit Treated the Same

In the U.S. and its territories there are 80,000 posting authorities and about 4 million miles of roads.

Safety and due process of law requires fact based standards and practices that are uniform in application, expectation and the exercise of police powers thereof as you travel from sign to sign.

Our Constitution mandates uniformity in its standards are promulgated and the posting authorities substantially conform to the Constitution’s due process protections of our nation’s Rule of Law mandates.

Once it became federal per the Supremacy Clause, disparate regulations and expectations became void and not even Congress can recede authority to the states that violate substantive due process or the rights’ of an individual.

invented values are not engineering

Why is there so much confusion, it’s because there are no checks and balances to assure our standards are based on empirical findings nor are they cross checked as due process in the exercise of police powers thereof.

Rural two lane roadways and interstates. No foundation whatsoever.

Speed limits, engineering studies without standards to be met and defining probable cause thresholds.

Signal timing ITE, formulas with invented and inadequate foundations

Original research curtailed decades ago by USDOT and the subject matter experts have retired. Though private efforts have validated basic tenets of engineering. Montana, Kansas, Utah, Indiana and many local engineers’ own findings.

SAFEST SPEEDFree Flowing

What is the safe speed and who decides?

The core tenet of reasonable traffic laws, safety and due process is that the super majority of people act in a safe and responsible manner, and they do drive safely for the conditions present. The engineering study quantifies the range of “super majority’s” reasonable and prudent consensus for that particular section of roadway, rather than relying on the judgment of one or a few.  

Urban roadways – 85th percentile speed

Urban, 50 mph plus 85th – 90th percentile speed

Rural 2 lanes* – mean plus 8 mph

Urban freeways* – mean plus 12 mph, higher speeds low risk

Rural low volume roadways – higher speeds low risk

Rural Interstates – higher speeds low risk

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SAFEST SPEEDLimited Access

Shape of 2 lane highway risk curve heavily influenced by vehicle mix and engineering practices circa 1960’s. Notwithstanding, Solomon's methodology was far superior and remains unique in this field, because he used actual travel speeds prior to and at time of incident, and causations. The predominantly 1950’s vehicles in his study were underpowered, required significant distances for overtaking, and passing exclusion zones etc were non existent. This is no longer the case and risk are much lower, except for slow moving vehicles.

In all cases, once clear of conflict zones and hazards, risk from speed in and of itself is low.

FHWA 1991: Only one in ten limits are posted at or greater than the mean, and in all cases the safest speeds are greater than the posted limits, is still applicable.

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SAFEST SPEEDUrban Areas

Source: FHWA Office of Safety and Traffic Operations R&D

RECOMMENDED PRACTICESpot Survey Inadequate

Speed of traffic best indicator of reasonable and safe speed

Spot speed surveys do not meet due process or safety requirements of a study

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Best Practice hero

Jerry Gabriel

Former Caltrans District 9

District Operations Engineer

Best Practice hero

• Jerry Gabriel

• Former Caltrans District 9

• District Operations Engineer

RECOMMENDED PRACTICEConclusion

Roadway design and environment determine safety and travel speeds, not the number on the sign. More importantly, a road with a posted limit is not necessarily safer than a road without posted limits and 100 percent of the traffic in a study could still be within the safe for conditions speed.

Traffic calming has it own short comings and many treatments can increase accidents, reduce roadway capacity, increase air pollution and lose their novelty effect as those that use the roadway daily return the speeds they are comfortable with.

Flow conflict points are where the majority of preventable accidents occur; examine all locations as to remedies to reduce flow friction, minimize cross movements, and improve guidance.

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RECOMMENDED PRACTICEConclusion

Roadway environment and hazard mitigation is the most effective way to reduce fatalities and serious injuries.

The number one contributing cause for those driving extended distances is fatigue, sleep deficit and complications from medical problems, therefore improving the acceptance and use of rest areas is a critical public safety strategy.

The truth is of those accidents that are preventable, engineering solutions represent the only true solutions because you cannot correct a design deficiency with enforcement. If there is a problem area, then the engineer needs to act on it to determine what is contributing to the problem, what remedies may be indicated to correct it, and then place it on the action list accordingly.

Placing an invented number on a sign will not make you safer, but fact based laws that are uniformly applied, and making sure best safety practices are followed will.

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Hope

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