Reckless Driving for “Failing to Stop, When Approaching From Any Direction, A School Bus Which Is Stopped”

Virginia Code § 46.2-859, Passing A Stopped School Bus, states, with the key section in bold:

A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children. The driver of a vehicle, however, need not stop when approaching a school bus if the school bus is stopped on the other roadway of a divided highway, on an access road, or on a driveway when the other roadway, access road, or driveway is separated from the roadway on which he is driving by a physical barrier or an unpaved area. The driver of a vehicle also need not stop when approaching a school bus which is loading or discharging passengers from or onto property immediately adjacent to a school if the driver is directed by a law-enforcement officer or other duly authorized uniformed school crossing guard to pass the school bus. This section shall apply to school buses which are equipped with warning devices prescribed in 46.2-1090 and are painted yellow with the words “School Bus” in black letters at least eight inches high on the front and rear thereof. Only school buses which are painted yellow and equipped with the required lettering and warning devices shall be identified as school buses.

What do you think that statute means? The Washington Post reports on a Virginia case in which the judge interpreted the statute as prohibiting the failure to stop a stopped school bus. The driver, John Mendez, passed a school bus. According to the judge, he was not guilty under the text of the statute:

“He can only be guilty if he failed to stop any school bus,” Judge Marcus D. Williams said at the end of the brief trial of John G. Mendez, 45, of Woodbridge. “And there’s no evidence he did.”

Williams added, “I hope that this is addressed so we don’t have to keep dealing with this.”

And the Virginia General Assembly will address it. Told by a reporter of Mendez’s acquittal, Del. David B. Albo (R-Fairfax) said: “That’s not good. That’s a very serious charge. That needs to be fixed.”

I agree that the statute should be fixed. Obviously the crime here is failing to stop when approaching a stopped schoolbus, not failing to stop a stopped schoolbus. The statute doesn’t express the point as clearly as it should. At the same time, I don’t think Judge Williams’ interpretation is remotely persuasive: It seems to me that the law should be interpreted as a prohibition on passing a stopped school bus even without any legislative fix.

That’s true for two basic reasons. First, it’s obvious from the context what the legislature is trying to do. The statute, “passing a stopped school bus,” is familiar type of traffic law: The offense is passing a bus that is stopped while it is picking up or dropping off schoolchildren. The statute is a bit inartfully drafted thanks to the extra comma after “direction.” But it’s clear what the legislature is trying to prohibit: “fail[ing] to stop, when approaching from any direction[] any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.” That interpretation is abundantly clear from the exceptions to liability in the second and third sentences, which explain when a driver need not stop. The exceptions to liability are carve-outs from the first sentence, and they only make sense if the first sentence is a prohibition on a driver failing to stop himself.

Second, statutes should be construed to avoid absurdity and to avoid unconstitutionality.. Under the judge’s reading, the statute makes it a crime to fail to stop a school bus that is already stopped. That’s just nonsensical: How do you fail to stop something that is stopped? I have no idea what that even means. That uncertainty would seem to render the statute unconstitutional under the void for vagueness doctrine. Construing the statute to prohibit passing a stopped schoolbus therefore avoids both the absurd result and the likely constitutional difficulty raised by the Judge’s interpretation. It seems to me that it’s clearly the better interpretation.