November 3, 2010
Dear Sir:
You have the following question: Is a “No U-Turn Sign” a prerequisite to a “No U-Turn”
prohibition in the Municipal Code or ordinance?
I have struggled over this question and cannot find an answer that satisfies me. The reasons
I cannot answer it are that I do not know where the offense at issue occurred, and it may have
occurred someplace where a No U-Turn sign is not required; I do not know whether there is a
general absence of No U-Turns signs in the city even though the Municipal Code simply prohibits
U-turns in the city; several statutes are implicated in that question and I am not sure which ones
would prevail; there are few cases on the question of whether the Manual on Uniform Traffic
Control Devices (MUTCD) applies to traffic offenses, and those relate to inadequate signs rather
than the absence of signs.
The most recent Municipal Code, which was prepared by a private attorney, was adopted
by the city in August, 2000. Section 15-404 of that code simply provides that U-turns are
prohibited. In addition, Section 5-108 of that code adopts the “latest revision” of MUTCD, but
provides that “This section shall not be construed as being mandatory but is merely directive.”
Little is said in the state law about U-Turns. Tennessee Code Annotated, § 55-8-141
makes it a Class C misdemeanor for a vehicle to be turned:
so as to proceed in the opposite direction upon any curve, or upon
the approach to or near the crest of a grade, where the vehicle cannot
be seen by the driver of any other vehicle approaching from either
direction within five hundred feet (500').
Tennessee Code Annotated, § 54-16-108(a)(2) provides with respect to controlled access
highways that it is unlawful for any person to, “Make a left turn or a semicircular or U-Turn except
through an opening provided for that purpose in the dividing curb section, separation or line.”
Those two provisions are, as far as I can determine the only statutory prohibitions on
U-turns. It seems to me that in at least those two situations a No U-Turn sign is not necessary to
support a charge of violating those two statutes. But two other state statutes also speak, directly
or indirectly, about the necessity for traffic signs to support a traffic violation. The first one is
Tennessee Code Annotated, § 55-8-109, which provides for general compliance by drivers of “any
official traffic control device,” and further provides that:
November 3, 2010
Page 2
(b)(1) No provisions of this chapter for which signs are required
shall be enforced against an alleged violation if at the time and place
of the alleged violation an official sign is not in proper position and
sufficiently legible to be seen by an ordinarily observant person.
(2) Whenever a particular section does not state that signs are
required, that section shall be effective even though no signs are
erected or in place.
Violations of this statute are Class C misdemeanors.
The second statute is Tennessee Code Annotated, § 54-5-108, which provides that the
Department of Transportation has the power and duty to formulate and adopt a manual for the
location of signs, signals, markings, or postings of traffic regulations on or along all streets and
highways in Tennessee,
and no signs, signals, markings or postings of traffic regulations
shall be located on any street or highway in Tennessee regardless of
the type or class of the governmental agency having jurisdiction
thereof except in conformity with the provisions contained in such
manual.
In language tracking that statute, the Tennessee Department of Transportation in Tenn.
Comp,. R & Reg. 1680-3-1-.01 rule applies the current MUTCD to “all the streets and highways
in the State of Tennessee,” and in Tenn. Comp. R & Regs. 1680-3-1-.02, it adopts the 2003 Edition
of the MUTCD. Tenn. Comp. R. & Regs. 1680-3-1-.03 provides that:
It is the intent of the Tennessee Department of Transportation to
amend these rules as necessary to adopt future revisions of the
MUTCD as may be hereafter approved by the U.S. Department of
Transportation, Federal Highway Administration.
The Tennessee Department of Transportation has adopted the 2003 MUTCD. But it also appears to
me that what I say throughout this letter also applies to the 2009 MUTCD.
With respect to the question of whether the MUTCD is mandatory, that manual itself
differentiates between “Standards,” “Guidance” and “Options,” in the application of the MUTCD,
as follows:
Standard: When used in this Manual, the text headings shall be
defined as follows:
November 3, 2010
Page 3
1. Standard–a statement of required, mandatory, or specifically
prohibited practice regarding a traffic control device. All
standards are labeled, and the text appears in bold type. The verb
shall is typically used. Standards are sometimes modified by
options.
2. Guidance-a statement of recommended, but not mandatory,
practice, with deviation allowed if engineering judgement or
engineering study indicates the deviation to be appropriate.
All Guidance statements are labeled, and the text appears in
unbold type. The verb should is typically used. Guidance
statements are sometimes modified by Options.
3. Option–a statement or practice that is permissive and that
carries no requirement or recommendation. Options may
contain allowable modifications to a Standard of Guidance.
All Option statements are labeled, and the text appears in
unbold. The verb may is typically used.
4. Support–an information statement that does not convey any
degree of mandate, recommendation, authorization,
prohibition, or enforceable condition. Support statements are
labeled, and the text appears in unbold type. The verbs shall,
should and may are not used in Support Statements. [See 2003
MUTCD, pp. 1-2 and 1-3.]
Thus, it seems clear that Section 5-108 of the Municipal Code, which makes MUTCD
advisory, cannot be supported by the state law. Tennessee Code Annotated, § 54-5-109, provides
that manual applies to all the streets and highways of the state, with respect to regulatory traffic
signs and signals, but that manual itself makes only the “Standards” mandatorily applicable to such
signs and signals.
It is clear that No U-Turn signs are among the signs classified in § 2B-19 of MUTCD as
“Turn Prohibition Signs (R3-1 Through R3-4, and R-3-18). Specifically, the No U-Turn Sign
is Sign R3-4. The Standard for the R3-4 sign (and the R3-1 through R3-4 and R3-18 signs) under
Section 2B.19 is: “Except as noted in the Option, where turns are prohibited, Turn
Prohibition signs shall be installed.” The OPTION in Section 2B-19 relates to the placement
of No U-Turn signs where traffic signals are present.
Unfortunately, our inquiry does not end there. The question of whether MUTCD applies
to the application of the traffic law of the state in the traffic violation context is still not clear.
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Nearly all of the cases in the United States involving MUTCD involve governmental tort liability
issues, not the issue of whether persons charged with traffic violations of one kind or another have
a defense that signs, signals or markings implicated in the traffic violations at issue do not meet the
standards prescribed by MUTCD. The few cases that involve the application of MUTCD in
traffic violation cases deal with the question of whether the traffic signal or sign at issue
conformed to the standards of MUTCD, not whether the sign or signal required by MUTCD was
absent.
One of the few of the latter cases is the recent unreported Tennessee case of City of
Murfreesboro v. Hooper, 2007 WL 2339853 (Tenn. Ct. App. 2007) (which was appealed to the
United States Supreme Court, where that appeal was denied). There Hooper challenged a
speeding ticket he got from the City of Murfreesboro on the ground that the ticket was invalid
because the city had not reevaluated speed limits as he claimed MUTCD required the city to do
periodically.
The Court rejected his challenge in language which may give us some guidance on the
effect of MUTCD in traffic violation cases. The Court, citing Begley v State, 162 S.W.2d 535
(Tenn. Ct. App. 2005) and Atkins v. State, 2004 WL 787166 (Tenn. Ct. App.), declared that the
State of Tennessee had adopted MUTCD. But the Court held that Hooper’s claim that the speed
limit had not been reevaluated since 1990 had no merit, because the language in MUTCD calling
for the reevaluation was not mandatory, pointing out in Footnote 2 that:
As the trial court noted, the regulations in the MUTCD are set out
under three subheadings, which are called “standards,” “guidance,”
and “options.” The trial court also correctly noted that the
applicable provisions in this case falls under the heading of
guidance. [At 2]
The Court also declared that:
... MUTCD was adopted by Tennessee as a “manual for the design
and location of signs, signals, markings, and for posting of traffic
regulations on or along all streets and highways in Tennessee ....; it
regulates the use of signs, signals and other devices, not the setting
of speed limits.... [At 3].
Taken together, that language suggests that the signs required by MUTCD may be
mandatory to support traffic violations cases, but that case cannot necessarily be read for that
conclusion. A reason the Court gave for refusing to hold that the periodic review of the speed
limits was not required to support the speed limit was that such a ruling would void all the speed
limits signs in the city. A similar ruling with respect to the No U-Turn signs (or perhaps lack of
them in your city’s case) would render the city without a No U-Turn prohibition.
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In City of Wichita v. Rice, 889 P.2d 789 (Kan. App. 1995), the defendant was convicted of
running a red light. He argued that the light was obscured in violation of MUTCD. In upholding
his conviction, the Court pointed to § 11.20.30 of the Wichita Code which provided that all traffic
control devices were required to conform to the MUTCD, and declared that:
The Manual provides that an effective traffic control device should
command attention, give adequate time for proper response, be kept
in proper position, and be clean and legible. The manual provides
that care should be taken that weeds, trees and shrubbery do not
obscure the face of the sign. [At 792]
The Court also pointed to § 11.20.030 of the City Code, which provided that provisions of
the traffic control ordinance “for which official traffic control devices are required to be enforced
against an alleged violation if at the time and place of the alleged violation an official device is not
in proper position and sufficiently legible to be seen by an ordinarily observant person” (which is
virtually identical to the provision in Tennessee Code Annotated, § 55-8-109).
The defendant might have had a case if he had been able to show that the light was not
visible, declared the Court. But in this case, the driver of the car the defendant struck testified that
it was sufficiently visible to have been seen, and that evidence was uncontroverted.
It is difficult to distinguish between a sign or signal that is not visible and one that is simply
absent; in neither case does a sign give motorists direction. But Tennessee Code Annotated, §
55-8-109 (b)(2) says that if no sign is required by certain provisions of the traffic laws of the state,
one need not be certain one need not be in place to support the traffic violation charge at issue.
But the case of City of St. Paul v. Lofthouse, 146 N.W.2d 858 (Minn. 1966) held that a
charge of violating a No U-Turn ordinance was required to be supported by a No U-Turn sign, the
Court reasoning that:
Where a traffic restrict is not universally known or observed as in
effect at a given place it is no more than reasonable to expect that the
public should be adequately informed of the restriction before penal
sanctions apply... [At 861]
However, the same Court in State v. Johnson, 183 N.W.2d 541 (Minn. 1971), held that a
statute prohibiting the use of snowmobiles on the shoulders of highways except in two places, did
not require a sign to support the prohibition. The Court distinguished Lofthouse, above, reasoning
that an ordinance in that case also provided that penal prohibition should not be enforced in the
absence of signs, markings or other devices. In this case, said the Court, the statute at issue
“expressly prohibits the operation of a snowmobile on the shoulders of trunk highways and has not
November 3, 2010
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the conditional aspect on which the court based its opinion in Lofthouse.” [At 544]
The City’s prohibition on U-Turns in Section 15-404 of its municipal code likewise has no
conditional aspect.
However, the conviction of a driver who made a right turn on a red light during hours such
turn were not allowed was overturned in City of Lynnhurst v. Mcginess, 741 NJ.E.2d 976 (Ohio.
App. 2000), where the sign indicating the hours turns were prohibited did not conform to the
MUTCD. The Court declared that there could be no criminal liability for violation of a traffic
control device that did not conform to that Manual. The City of Lynnhurst Court pointed to the
earlier case of City of Maple Heights v. Smith, 22 N.E.2d 607 (Ohio App.3d. 1999), from the same
appellate district, in which it was held that, “there is no criminal liability for violation of a traffic
control device that is unofficial and not in conformity with the manual.” [At 979]
The facts in City of Maple Heights and City of Lynnhurst appear the same. However it may
be that the Ohio statutes under which Ohio’s MUTCD was adopted are stricter than are
similar statutes in Tennessee. The City of Lynnhurst Court acknowledges that there is a split
among Ohio districts on the question of whether traffic signals must conform to the Ohio MUTCD
before they are enforceable.
In the unpublished Wisconsin case of County of Green Lake v. Mertz, 699 N.W.2d254,
2005 WL 1231890 (Wis. App.), the Court held that a speed limit sign that was slightly smaller than
the size required by MUTCD rendered a charge of violating the speed limit void, the Court
declaring that the sign size was a Standard, which under that manual was mandatory.
Considering the Tennessee statutes and cases above, and cases from other jurisdictions, I
am not sure whether the Tennessee courts would apply MUTCD to allow defendants charged with
traffic violations to defend against those violations based on the absence of signs that appear to be
required by MUTCD. That question awaits a clear answer in Tennessee.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/