Law Review: Passing a vehicle is only legal if safe |

Law Review: Passing a vehicle is only legal if safe

Jim Porter

Driving in the Sierra, especially in the winter with ice and snow, justifies defensive driving and requires particular attention and unique skill.

After you read today’s column, I hope you will drive a little more carefully and focus on safety, not speed.


Defendant Marco Escarcega was driving at night on a two-lane road divided by a broken yellow line, speed limit 55 mph. Two vehicles were ahead of Escarcega, including a large delivery box-truck in front, followed by Shannon Emery. Neither Escarcega nor Emery could see in front of the box-truck.

The Escarcega pulled into the left lane to pass Emery and the box-truck — ultimately going over 70 mph. Visibility was marginal. Escarcega suddenly realized there were more vehicles in front of the box-truck and tried to get back into the right lane even as Emery was slowing down to allow Escarcega to pull in front of her.


Seeing headlights suddenly coming at him and not being able to pull back into the right lane, Escarcega pulled way over to the left shoulder. (Why would anyone do that?) And of course, the oncoming car swerved to the right to avoid hitting Escarcega and they hit head-on resulting in catastrophic injuries to everyone but Escarcega. Why is that so often the case?

The driver of the oncoming car, which was on fire, with children including a 6 year old screaming in the back seat, struggled to free herself, yelling for help; as witnesses later testified, “but Defendant just looked at her and walked away.” Later at trial, Escarcega blamed the oncoming driver, but acknowledged he did not have a clear view of the traffic lane.


Escarcega was charged with reckless driving, convicted and given a term of six years in state prison. He appealed.

To convict Escarcega of reckless driving, the People must prove beyond a reasonable doubt that Escarcega intentionally drove “with wanton disregard for the safety of persons or property.” Intentionally ignoring a substantial and unjustifiable risk of harm.

As the Second Court of Appeal wrote, “Taken together, these (vehicle) statutes make clear that a broken line on a roadway does not make passing legal: passing is only legal if it is safe. And passing is not safe unless a driver, before attempting to pass another car, can see that the left lane is free from traffic and that there is enough room in the right lane to overtake the slower vehicle without cutting it off.”

The testimony at the jury trial in which Escarcega was convicted, showed that he, rather than slow down to try and get back into the right lane, sped up to try and pass the box-truck, evidence of reckless disregard for safety.


The jury convicted Escarcega and added a great-bodily-injury enhancement to the reckless driving conviction thus six years. It did not help Escarcega’s case that, as the court wrote, he “displayed callous disregard for life when … he saw (the oncoming car victim) screaming inside a burning car yet failed to call 911; instead, he called his fiancé.”

The take-home point of this Law Review is obvious.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at or

Support Local Journalism


Support Local Journalism

Readers around Lake Tahoe, Truckee, and beyond make the Sierra Sun's work possible. Your financial contribution supports our efforts to deliver quality, locally relevant journalism.

Now more than ever, your support is critical to help us keep our community informed about the evolving coronavirus pandemic and the impact it is having locally. Every contribution, however large or small, will make a difference.

Your donation will help us continue to cover COVID-19 and our other vital local news.

Start a dialogue, stay on topic and be civil.
If you don't follow the rules, your comment may be deleted.

User Legend: iconModerator iconTrusted User