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  1. #1
    msincognito is offline Member
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    HOV/Carpool lane - baby counts?

    What is the name of your state? California

    I'm visiting my sister and we have a small debate going on... she says she doesn't think she can drive in the 2-person carpool lane if it's just herself and her 2-month old baby in the car. I say nonsense, he meets the definition of "person" and that's all it takes. (He's certainly cute enough to qualify as three or four people, and loud and stinky enough at certain times as well.)

    Without a doubt, she's hewing to the spirit of the law, which is meant to encourage adults to share rides. But I think the letter of the law is something different. I found lots of statutes regarding changing lanes in and out of HOV lanes and how an HOV lane is designated, but couldn't point her toward the statute or code section that defines "person" for the purposes of this issue. Can anyone put their finger on it for me? Thanks!
  2. #2
    theother Guest
    I'm not sure, but I think that technically you are right. However, I do agree with your sister that using a baby as your carpool passenger is not keeping in the spirit od the law. If that principal is important to her, I applaud her for putting her money where her mouth is so to speak.

    A while back, I read of a case where a woman argued that she should not have gotten a ticket in the carpool lane because she was pregnant! That's taking it a little far, don't you think.
    I guess I shouldn't be suprised when I hear stories like that. Recently, I read another story of a lady who trying to say that she didn't need to put her kid in a carseat because she has a right to breastfeed while drinving.
  3. #3
    msincognito is offline Member
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    I agree about the spirit of the law ... but I was actually interested to know what the law actually says. It would be bizarre if California law did not consider a child a person in terms of carpooling, but gives a fetus status in some drug and homicide laws!

    If anyone has a statute number, I'd really appreciate it. I can find Florida statutes very quickly, but California's tangle of laws and codes is a mystery to me.
  4. #4
    ceej-one Guest
    When youngest was a baby I drove in the carpool lane all the time and many times a motorcycle officer would pull up next to me and look in the car. They always drove away looking very disappointed but I did check with a police officer I know to be sure and he said that a baby is considered a passanger thereby making the driver and the baby 2 people. I live in California. Hope it helps the debate.
  5. #5
    stephenk is offline Senior Member
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    any 2 people in a car qualify the vehicle to drive in carpool lanes.

    Now, for those who are interested, a pregnant woman driver does not qualify as 2 people for purposes of driving in the carpool lane.

    Your sister is right that the intent of the law was to encourage licensed drivers to carpool and reduce the number of cars on the freeways. But the statute was written in a way that allows anyone to qualify the vehicle for carpool driving.
  6. #6
    spawn_x is offline Member
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    Originally posted by stephenk

    Now, for those who are interested, a pregnant woman driver does not qualify as 2 people for purposes of driving in the carpool lane.
    actually that's incorrect.

    and while an officer may still GIVE a ticket, it will be thrown out of court.
  7. #7
    harbor14 is offline Member
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    Originally posted by spawn_x
    actually that's incorrect.

    and while an officer may still GIVE a ticket, it will be thrown out of court.
    Washington state is where a women tried that very thing; she lost and lost again on appeal.
  8. #8
    spawn_x is offline Member
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    Actually there's been many cases where they won.

    Basic reasoning behind that: if someone were to kill a pregnant woman they would try the case in court as double homicide. So if they consider the fetus a human being in that case, they have to consider it in a carpool case as well.

    while I think its stupid, I also think its fair. If they are going to count an unborn child as a human being when it comes to murder, its only fair that it would be considered in a carpool case as well..
  9. #9
    stephenk is offline Senior Member
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    spawn, a pregnant woman is not considered two people for purposes of carpool lane. At least not in California.

    Similarly, a pregnant woman cannot be charged for two tickets if she decides to go to a movie theater, amusement park, sporting event, etc.

    Please provide the cases or state statutes that support your position.
  10. #10
    HomeGuru is offline Senior Member
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    Can an obese pregnant woman be charged 2 seats on an airplane?
  11. #11
    spawn_x is offline Member
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    Following that logic why is a killer charged with killing two people if he kills a pregnant female?


    I see your logic, and to be honest I agree with it. However if they consider destroying a fetus "murder of a human being" then I would hope the fetus counts as a human being in every other situations.

    I am trying to find the case I was talking about but google isn't being real helpful today.

    P.S. I think the double murder charge is nonsense, but that is just me.
  12. #12
    I AM ALWAYS LIABLE is offline Senior Member
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    My response:

    SpawnX, you're mixing apples and oranges.

    I see your "thinking" on this issue, and you're going a little bit far afield from our writer's post, but what you're forgetting is that all States have both "Civil" laws and "Criminal" laws, and our conduct under either is weighed differently between the two.

    In most States, their Legislatures have given fetuses certain "rights" and "protections" under Criminal statutes, as opposed to their Civil statute counterparts. In an auto accident, where no criminality is alleged, a fetus has no rights and does not, by law, give the soon-to-be mother any more rights to claim a higher degree of damages than if that same mother lost her leg, liver, or any other body part.

    In our writer's situation, we're talking about the California Vehicle Code which, by itself, is a compendium of "Civil" laws; i.e., the laws and rules concerning and governing how we operate our vehicles.

    The States have their "separate" right to give fetuses more "rights" than, say, your liver, or your leg, or your stomach. In other words, some States, like California have, under it's Criminal codes, given fetuses a higher degree of recognition and protection - - notwithstanding the right to abort, under Roe vs. Wade.

    A child may recover for injuries sustained while a fetus. But if the child is not born alive, neither a "survival" action on the child's behalf nor a wrongful death action in favor of the heirs will lie: A fetus or embryo not born alive never attains the status of a "person," and only a "person" can maintain an action or be the subject of a wrongful death claim. [See Wilson v. Kaiser Found. Hosps. (1983) 141 Cal.App.3d 891, 897, 190 Cal.Rptr. 649, 653]

    Though there can be no "wrongful death" action for the death of a fetus or unborn child, the physician's duty of care to the mother makes her the direct victim of any negligence that causes in utero death of the fetus. Thus, the mother may recover damages for her resulting emotional distress. [Zavala v. Arce (1997) 58 Cal.App.4th 915, 927-933, 68 Cal.Rptr.2d 571, 577-582]

    The California Supreme Court has rejected any notion that the death of an unborn child or fetus can be actionable under the wrongful death statute; "a fetus is not a 'person' within the meaning of our wrongful death statute until there has been a live birth." [Justus v. Atchison (1977) 19 Cal.3d 564, 579-580, 139 Cal.Rptr. 97, 107-108 (emphasis added); see also Austin v. Regents of Univ. of Calif. (1979) 89 Cal.App.3d 354, 152 Cal.Rptr. 420]

    I hope that helps to clarify your dilemma.

    IAAL
    Last edited by I AM ALWAYS LIABLE; 08-24-2003 at 01:04 PM.
  13. #13
    HomeGuru is offline Senior Member
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    IAAL< very good clarification.
  14. #14
    JETX is offline Senior Member
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    "she says she doesn't think she can drive in the 2-person carpool lane if it's just herself and her 2-month old baby in the car"
    *** Children and infants ARE counted as passengers and would go to meet the 'quota'.
    From CalTrans:
    "Each child counts as an occupant, but pets, infants still in the womb, inflatable dolls or ghosts do not (we've heard 'em all). Violators are subject to a minimum $271 fine."
    [url]http://www.dot.ca.gov/hq/paffairs/faq/faq79.htm[/url]

    However, she would need to realize that when an officer sees just one 'head' in a vehicle, she would be subject to being stopped and would have to explain that an 'unseen' infant was the additional person. That would likely offset a large benefit of the HOV lane use.... getting there faster. In all candor, it could also make her more 'noticable' to officers for proof of in insurance, drivers license, seatbelt use, etc.
  15. #15
    HomeGuru is offline Senior Member
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    JETX, does the law cover imaginary friends, crash dummies, illegal immigrants, a human bean****************************..?

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