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NMA E-Newsletter #293: An Overview of Open Container Laws

Posted on August 24th, 2014 in , , , , , , , , , , , , , , | Comments Off

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With Labor Day just around the corner, many of us will hit the road for one last road trip before summer turns to fall. One often overlooked and misunderstood hazard of this endeavor concerns so-called open container laws. This becomes even more of an issue when it comes to motor homes.

The issue of open containers is not regulated or legislated at the federal level. States pass their own laws. However, the feds do exert some influence over open container control through the Transportation Equity Act for the 21st Century (TEA-21). TEA-21 establishes guidelines for open containers in vehicles, which the states must follow or risk losing highway funding.

Forty states are in full TEA-21 compliance. This means they prohibit:

  • Any open alcohol container or the consumption of alcohol in vehicles
  • Open alcohol in vehicles in the passenger area including unlocked glove compartments where the driver can easily reach the container
  • All open alcohol containers with at least one-half of one percent of alcohol
  • Open alcohol containers in any vehicle on the public highways including shoulders.

Arkansas and West Virginia are in partial compliance with TEA-21, while Alaska, Connecticut, Delaware, Missouri, Rhode Island, Tennessee and Virginia allow passengers to drink alcohol. Mississippi is the only state that allows drivers to consume alcohol while driving, as long as they stay under the legal limit for DUI. (Look here for a complete list of state open container laws.)

Keep in mind that laws do change from time to time. Also note that some municipalities have passed local open container ordinances that may be stricter than state law.

Regarding open containers in motor homes, NMA Texas member and frequent e-newsletter contributor Ted Levitt provides the following information, based on his research into the legality of vehicle searches:

There is no separation from the driver’s seating area and the passenger seating area of a motor home, so anyone sitting in the motor home and drinking alcohol while the vehicle is moving may be charged with a violation, depending on your state’s open container law (see above). Driving your friends to the lake in your motor home while they enjoy a sandwich and a beer in back may end up with everyone getting a ticket or arrested.

The legality of searches conducted on any vehicle with questionable “probable cause” will be decided by the courts on a case-by-case basis. With all vehicle searches, based solely on a non-jailable traffic offense, (such as a speeding ticket) the police officer must first be able to justify the search by either an arrest incident to a traffic offense with a justifiable probable cause under either the “In Plain View” doctrine or under some exigent circumstances.

It would be wise to check with your local state police to find out how your state’s open container laws deal with motor homes before you allow a passenger to drink while you are driving your motor home.

The NMA does not condone drunk driving. Even if your state does allow open containers in moving vehicles, it may be wise to abstain. If you do get pulled over, you have no guarantee the officer knows, or cares, what the law says. Let prudence be your guide to a safe and fun Labor Day weekend.

NMA Maryland/Virginia Alert: Defend Yourself against MD Speed Cam Tickets

Posted on August 20th, 2014 in , , , , , | Comments Off

If you receive a Maryland speed camera ticket and were not driving at the time, you are under no obligation to name the person who was driving, according to a recent investigative news report.
The story stems from language on the tickets telling drivers they may “choose to identify the person” who has behind the wheel. Some motorists have construed this to mean that they must say who the driver was, and the Maryland court system has done nothing to dispel this notion.
In reality, the Maryland speed camera statute says nothing about identifying the driver of the vehicle. Instead, it specifically cites as a defense “evidence that the person named in the citation was not operating the vehicle at the time of the violation.” Several Maryland motorists have recently used this defense to win a dismissal of their speed camera citations.
If you get a Maryland speed camera ticket and were not the driver and can prove it, you may be able to win your case based on the language in the statute. Check out this page from the Maryland Drivers Alliance for more details on how to do this. 

NMA California Alert: Motorist Bills Need Action

Posted on August 18th, 2014 in , , , | Comments Off

Drivers’ rights activists in California are coming together to take action on these important motorist-related bills:
Senate Bill 1079 would protect against potentially higher fuel costs by exempting suppliers of transportation fuel from having to purchase carbon allowances until 2021. The bill is under consideration in the Senate Rules Committee. Please contact committee members to ask them to support this bill.
Assembly Bill 2393 would increase vehicle registration fees to fund the implementation of an automated fingerprint identification system. The bill has been passed by the Assembly and Senate and is awaiting approval by the governor. Please contact Governor Brown’s office to ask him to return this bill unsigned on the basis that fees paid by motorists should be solely used for roadway funding.
Senate Bill 1077 would require various transportation agencies in the state to implement a pilot program designed to “explore various methods for using a mileage-based fee (MBF) to replace the state’s existing fuel excise tax.” The bill has passed the Senate and will be heard in the Assembly. The NMA opposes such fees because they are expensive to administer, lead to pervasive tracking of motorists, and are not as efficient or equitable as the current fuel tax system. (Learn more here.) Please contact your Assembly member to ask him or her to vote against SB 1077.
Senate Bill 1183 would allow local jurisdictions to impose a $5 vehicle surcharge to fund the expansion of, and improvements to, bicycle trails and bicycle parking facilities. The bill has already passed the Senate and will be heard in the Assembly. Please contact your Assembly member to ask him or her to vote against SB 1183 on the basis that fees paid by motorists should be solely used for roadway funding.

NMA E-Newsletter #292: Passing the Sniff Test

Posted on August 17th, 2014 in , , , , | Comments Off

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The civil forfeiture racket is never far from the headlines these days, and thanks to the ubiquitous use of drug sniffing dogs, it’s easier than ever for police to shakedown motorists and get away with it.

Here’s how the scam works: A police officer pulls over a driver for a routine traffic stop, becomes “suspicious” of possible illegal activity (usually drug-related) and asks if he can search the vehicle. If the motorist refuses, the officer calls for a trained drug dog to sniff around the exterior of the vehicle.

Invariably, the dog alerts to something, and a search ensues. Sometimes the search reveals cash or other valuables, which are assumed to be connected to illegal activity and confiscated. Drivers then have a hard time getting their property back and often must mount expensive legal challenges to do so. (See the winter 2014 Driving Freedoms cover story for more on the hazards of civil forfeiture.)

The dog provides the key to unlocking this treasure trove. Courts have made clear that the use of a drug dog does not require probable cause or reasonable suspicion and that the dog’s detection of the scent of contraband can produce the probable cause needed to search the vehicle.

But how reliable are these beasts? As it turn out, not very, even though a dog’s sniffer can be up to 100,000 times more sensitive than a human’s. Dogs can distinguish smells from one another even when they’re mixed together. So, when a person walks into a kitchen and smells pizza, all he smells is pizza. But when a dog smells pizza, it’s smelling sausage, cheese, onions, oregano, tomato sauce and crust. This is why a trained dog can smell trace amounts of an illicit substance even if the odor is being masked by coffee grounds, perfume or dryer sheets.

Law enforcement officials would have us believe that drug dogs are infallible when it comes to detecting drugs. But nothing could be further from the truth, according to a study from the University of California at Davis released last year. Researchers recruited 18 dogs and their handlers and gave them a simple task: go through a room and find the hidden drugs and explosives.

But there was a catch. The room contained not drugs or explosives. To pass the test, the teams had to search the room and detect nothing. Out of 144 trials, that only happened 21 times, for a failure rate of 85 percent. Why so many false positives? The study concluded that “handler beliefs affect scent detection dog outcomes,” and that the dogs have been trained to alert in response to subtle cues from their handlers. This means the handler can get the dog to alert even if no drugs are present. View this now-famous video to see how the whole thing works.

Thankfully, some in the law enforcement community have begun to challenge the reliability of drug-sniffing dogs. In 2012 two Nevada Highway Patrol (NHP) K-9 officers filed a lawsuit claiming that the drug dogs used by the Las Vegas Metropolitan Police Department and the NHP had been trained to respond to their handlers’ cues which led to illegal searches and the seizure of millions of dollars from motorists. The outcome of the case is still pending.

What can you do if you’ve been pulled over for a legitimate traffic stop and the cop wants to release the hounds on you? First, state clearly that you do not consent to any searches. If you are asked to exit your vehicle, do so but lock the doors and don’t give your keys to the officer. State your objection to the use of the dog.

Most of the time, the dog will have to be brought to the scene. While you wait, ask if you are being detained and if you are free to leave. Keep asking. The police cannot detain you indefinitely. If the delay extends beyond the time it takes to run your plates and write up the citation, the use of the dog becomes constitutionally suspect. The key is to assert your rights throughout the stop. It may not prevent a search of your vehicle, but it may protect you down the road and lead to a better outcome in the courtroom.

NMA E-Newsletter #291: How Much Does Your State Divert Federal Highway Funding To Transit Projects?

Posted on August 10th, 2014 in , , , , , , , , , , , , , , , | Comments Off

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This week we wrap up our examination of the three equal-weighted metrics that comprise the State Fiscal Responsibility scoring in the recent NMA report, “Motorists Beware: Ranking the States That Treat You Worst.” Part 1 (Legislative Interference with Transportation Planning, #289) rated the influence of lawmakers in determining the planning and spending of funds on state transportation projects. That was followed by a review how much of state-collected fees and taxes are applied to true—roads and bridges—highway projects (How Well the States Apply Your Road-User Fees, #290). Now we add the critical third leg which will determine whether each state’s fiscal responsibility platform stands firm or wobbles under the weight of the political process.

The diversion of federal-tax revenues from road aid to transit capital projects is galling. This op-ed from the Washington Examiner reflects our feelings well, particularly in light of the continued deterioration of the nation’s highway infrastructure. An analytical approach was necessary to properly evaluate how each state utilizes the resources it receives from the federal Highway Trust Fund. Our source of information was the November 2012 report, “GAO-13-19R Flexible Funding,” a tabulation of the amount of federal apportioned road aid transferred (“flexed”) to the Federal Transit Administration (FTA) for transit projects, by state, in the years 2007 to 2011.

We used the following rating guide for each state, with 5 points being the most favorable score:

  • 5 points: No flexing of federal road aid to transit between 2007 and 2011
  • 4 points: Less than 2 percent of aid flexed
  • 3 points: 2 percent to less than 10 percent of aid flexed
  • 2 points: 10 percent to less than 25 percent of aid flexed
  • 1 point:  25 percent or more of federal road aid flexed to transit projects from2007 to 2011

Road-user fees collected by the federal government are returned to the states in the form of annual apportionments for each of about six major federal-aid highway programs. The aid under many of these programs can be transferred from highway projects overseen by the Federal Highway Administration (FHWA) to transit capital projects overseen by the FTA. The decision to transfer, or flex, road aid is up to each state. The percentage flexed can vary greatly from year to year so our rating makes use of a five-year tabulation made by the General Accounting Office to indicate how prone each state was to divert motorists’ fees to transit capital projects. These latter projects range from highly-inefficient low-speed trolley lines to mass-transit and bus services.

Observations made upon review of the GAO data:

  • Seven largely rural states flexed no highway aid during the 2007 to 2011 period (Arkansas, Delaware, Hawaii, Mississippi, North Dakota, South Dakota, and Wyoming).
  • Four states flexed more than 25 percent of their federal highway aid during the period (New Jersey, Oregon, Virginia, and Vermont). Three of these states are building rail-transit projects with extremely low benefit-to-cost ratios (Bergen, NJ light rail; Portland, OR streetcars; Dulles, VA silver WMATA line).

Without further adieu, the scoring by state:


Traffic Lanes Disappearing?

Posted on August 8th, 2014 in , | Comments Off
Tom Ciccateri, long-time NMA member and Albuquerque resident, sent us this message of concern:

“Recently the City of Albuquerque has reduced the lanes of traffic on a major surface street corridor for the purposes of beautification and adding bike lanes. Now they are proposing (for safety reasons) to continue that effort and reduce lanes across the city to one lane each direction on a much-used street. Concurrently they are proposing (for rapid transit reasons) to use state and federal funding to reduce to one lane each direction the main road through the city (old Route 66).

These added bike lanes will greatly reduce surface street capacity and clearly have not assessed the impact on automobile users. City responses are that drivers will choose an alternate route, although there are no studies showing the existence of alternate routes.
Each of the above three initiatives are supported by independent groups and there appears no master plan or impact analysis.
What can motorists do before we are left with nothing but single lanes with substandard speed limits in order to commute?”

The apparent lack of analysis and planning is alarming, particularly when the constriction of traffic flow in Albuquerque (or any city of significant size) can result in significantly negative unintended consequences.  If you feel the same, please contact city officials and voice your concerns.  Tom sent the following letter with thoughts that you may wish to echo:

City of Albuquerque
Department of Municipal Development
Engineering Project Division

6 August 2014

Dear Mr. Mirza,
I am unable to attend the planned Zuni Road Improvements public meeting on August 19th and wanted to formally submit some comments.

  1. The proposed reduction in the number of vehicle lanes will significantly reduce the capacity of Zuni Road to handle vehicle traffic for commuters to Sandia National Laboratories and the Albuquerque Technology Park from our South East neighborhoods. How has this impact been assessed?
  2. Displaced east-west traffic that chooses Central Avenue will itself be displaced should the proposed BRT Project cause a reduction in the number of driving lanes on that last-remaining east-west surface street cross-town option. Where is the City-wide (system-wide) study that shows how the city’s surface streets can accommodate present and future vehicle traffic volume in light of the reduced number of driving lanes caused by the Lead-Coal Corridor Project, the Zuni Road Improvements Project, and the Central Avenue BRT Project?
  3. Given that city, state, and federal tax dollars fund these projects, the needs of motor vehicle commuters needs to be given a much greater priority than the proposed emphasis on lower speeds and more bicycle lanes. This should be explicitly addressed in associated Environmental Impact and Economic Impact studies before any plan is approved.

Thank you for your consideration

The logistics of the August 19th public meeting can be found at

The most effective method of gathering information and voicing your concern is to be physically present and to participate in these types of meetings. City and state officials need to be aware that motorists have rights and concerns too.

If you are interested in organizing an active effort against this lane reduction beyond the meeting on the 19th, contact the NMA.  We’ll get you in touch with like-minded Albuquerque-area members.  Our Community Support Program was established to offer grant aid for local grassroots efforts on behalf of motorists.  This may be an opportunity to make use of that resource and protect Albuquerque drivers.

NMA E-Newsletter #290: How Well the States Apply Your Road-User Fees

Posted on August 3rd, 2014 in , , , | Comments Off
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Or how poorly the states spend your money, depending on the level of cynicism you have built up as a taxed-and-surcharged driver over the years. Last week (Legislative Interference with Transportation Planning, #289) we took a look at the first of three metrics that we used to determine the State Fiscal Responsibility score in the NMA’s report, “Motorists Beware: Ranking the States That Treat You Worst.” Today we move on to the second metric in that category—how efficiently each state takes the road-user fees collected from you and uses them to fix and improve the nation’s highway infrastructure.
Road-user fees applied to road use. Seems like a simple enough concept. Of course it isn’t, particularly when political interests and government bureaucracy come into play. Here is how we scored this metric, with 5 points indicating the best application of road-user fees and 1 point the worst:
  • 5 points: Road-user fees are constitutionally restricted exclusively to road construction and maintenance.
  • 4 points: Road-user fees are constitutionally restricted to road use, plus transit or policing.
  • 3 points: Road-user fees are divided by statute among roads, transit, policing, and other road-related uses.
  • 2 points: Road-user fees are heavily diverted to transit and non-transportation uses.
  • 1 point: Road-user fees are appropriated at will for any purpose.

The basis for our evaluation was again answers supplied by state DOT officials to mid-2010 survey questions posed by AASHTO (American Association of State Highway and Transportation Officials) and by NCSL (National Conference of State Legislatures). The answers were supplemented from other sources. It should be noted that not all states obey their statutes, or even constitutional restrictions for all user fees.

Road use for these purposes is defined as road and bridge overhead, planning, engineering, construction, operation, and maintenance without regard to state vs. local jurisdiction. We have excluded transit as well as highway patrol or other policing. Road-user fees are comprised of fuel taxes, registration taxes and personal property taxes on vehicles (although some states responding to the AASHTO/NCSL survey may not regard vehicle property tax as a user fee).

Before presenting the score of each state, here are a few observations:

  • Vehicle registration taxes and the gasoline tax were divisive issues in the 1910s and 1920s respectively. When states settled on the fuel tax as the primary source of road funding in the mid-1920s, the agreement seems to have been based on constitutional guarantees that vehicle-related fees would be used only for roads. Twenty-eight states currently seem to have constitutional restrictions on the use of motorist fees.
  • Ahh, but the restriction is seldom absolute. State highway patrols are frequently funded from road-user fees, as is license-plate administration by the various departments of motor vehicles.
  • Beginning in the 1970s, many states weakened their constitutional protection of road-user fees by extending the use of “transportation” funds to public transit projects.
  • Most states that don’t have constitutional restrictions dedicate road-user fees to roads and transit by statute, but these laws can be (and frequently are) amended to shift funds to general purposes either in times of crisis, or as a matter of routine.

Now that we have you sufficiently riled up, here is the NMA scoring by state. Note that “constitutionally restricted” has been abbreviated as CR throughout the table:


NMA National Alert: Beware of E-ZPass Phishing Scheme

Posted on July 28th, 2014 in , , | Comments Off

Be on the lookout for an email that looks like this:

It looks like a legitimate email from E-ZPass, but it is a scam and should be disregarded. An alert NMA member in Ohio received this email and immediately told us about it. Tolling officials have also sounded the warning, telling drivers to delete email messages titled “In arrears for driving on toll road” or “Payment for driving on toll road.”
Such phishing messages are designed to get you to provide personal information which can be used to defraud you or steal your identity. If you have further questions regarding this issue, please contact your E-ZPass Customer Service Center.

NMA E-Newsletter #289: Legislative Interference with Transportation Planning

Posted on July 27th, 2014 in , , , , | Comments Off

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The states are experts at spending your money. Mind you, they don’t spend it efficiently or constructively, but boy can they spend it.

When we put together our Memorial Day rankings of the states by how they treat motorists, one of our primary evaluation categories—State Fiscal Responsibility—didn’t draw too many questions. But that was then and this is now.

The national dialog about how to keep the federal Highway Trust Fund solvent (beyond some patchwork fixes by Congress) remains very active. Proponents of adjusting the fuel tax, instituting VMT (vehicle miles traveled) taxes, playing the float on pension funds, and otherwise trying to figure out how to shift money from one federal pocket to another are holding forth. But there is another aspect of the Highway Trust Fund equation that hasn’t been talked about much: How effectively are the states spending the money collected from road users?

Shortly after releasing our “Motorists Beware: Ranking the States That Treat You Worst” report, we promised you we would provide a closer look at the five evaluation categories that comprise the overall rankings: Legal Protections (20 points), Regulations (20 points), Enforcement Tactics (30 points), State Imposed Cost to Drive (15 points), and State Fiscal Responsibility (15 points). In this newsletter and continuing for the next two weeks, we will focus on that latter category.

Our evaluation of State Fiscal Responsibility encompassed three metrics, each worth up to 5 points: 1) legislative involvement in transportation planning, 2) restrictions of the uses of fees collected from road users, and 3) diversion of federal fuel tax revenues from true (roads and bridges) highway projects.

Today we’ll look at the first metric which, put less delicately, determines how much the political process is allowed to screw up highway project selection and spending. The NMA evaluation is based on the assumption that deliberative bodies cannot prioritize competing capital investment needs without the intrusion of political influence. This is Washington D.C. (and state capitol) 101. Answers supplied by state DOT officials to survey questions posed by AASHTO (American Association of State Highway and Transportation Officials) and by NCSL (National Conference of State Legislatures) were used to determine our grades as follows, with 5 points being the best grade and 1 point the worst.  The survey was conducted in mid-2010; the answers were supplemented from various sources.

  • 5 points: Constitutional requirement for state DOT or commission oversight of program. Minimal legislative involvement.
  • 4 points: DOT or appointed commission approves program. Limited opportunities for legislative influence.
  • 3 points: Routine legislative involvement in program approval and project selection.
  • 2 points: Substantial legislative involvement. Legislature can heavily modify programs proposed by DOT.
  • 1 point: Legislative control of program with lawmakers picking projects.

Before presenting the NMA state grades for how much they allow the legislative process to dictate which transportation projects go forward, we offer two observations regarding the AASHTO/NCSL survey of state DOT officials:

  • Seventy-seven percent of those officials felt that the approved state transportation projects were done so on merit, but less than half of state legislators felt the same way.
  • The western states seem to have far stronger prohibition on legislative involvement with project programming. New England and the South seem to favor pork barreling.

How does your state rank?

NMA E-Newsletter #288: A Horse of a Different Color

Posted on July 22nd, 2014 in , , , , , , , , , , | Comments Off

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AAA, formerly known as the American Automobile Association, was founded in 1901 to lobby for driver and passenger rights, fair laws, and safer vehicles. It has long since morphed into an insurance and financial services giant. If there is any doubt about that, check out its profile at where AAA’s primary competitors are listed as American Express, Allstate and State Farm. Need further proof? By its own reckoning, AAA collects $8.5 billion in insurance premiums annually from its 50+ million members.

Nowhere is the difference between the interests of the driving public and the insurance industry better illustrated than by examining AAA public statements. The overall organization consists of several dozen semi-autonomous regional motor clubs that voice positions on key issues such as ticket cameras—mostly in favor of—and speed limit reform where their pronouncements are typically along the lines of slower is safer.

This was illustrated again recently when AAA Idaho released a statement that in effect said “not so fast” to the Idaho Transportation Department when the ITD announced, backed by a bill passed by the legislature and by its own traffic engineering studies, that it planned to raise the posted speed limits of stretches of Interstates 15, 84 and 86 from 75 to 80 mph on July 1st.

Such is the influence of AAA that the ITD backed off of its earlier commitment and said it would need more time to review the planned speed limit increase after AAA Idaho’s statements were released to the press. That triggered the following email exchange between NMA President Gary Biller and ITD Spokesperson Nathan Jerke:

June 25, 2014

Dear Mr. Jerke,

The National Motorists Association is a membership-based drivers’ rights organization that strongly supports speed limits that are based on the 85th percentile speed as determined from the study of actual traffic flow. We applaud ITD’s engineering-based decision to raise the limits on Interstates 15, 84, and 86 from 75 to 80 mph. Similar changes by other states such as Utah and Texas have resulted in greater compliance to the posted limit with no appreciable effect on safety statistics.

In an article published earlier today at — — a spokesperson from AAA Idaho raises questions as to the methodology used and even to the wisdom of raising the speed limit from a safety standpoint. You are quoted in the same article as noting that the engineering and traffic studies that substantiate the 5 mph increase in interstate speed limits have been performed. Can you please forward a copy of those studies to us at the NMA or provide a link to the information so that we can help educate the driving public and assure our Idaho members of the engineering soundness of the speed limit increase?

Thank you.

Gary Biller

June 30, 2014

Dear Mr. Jerke,

My organization has noted the latest news that ITD will take additional time to review the speed studies before deciding on a speed limit increase. Certainly such a decision merits careful consideration. We have every confidence that if the speed studies on the referenced interstates were conducted such that the results are clear, then raising the speed limits to at least the nearest 5 mph over the 85th percentile speed will result in highway safety that is unaffected or even improved. The crash involvement vs. deviation from average speed study done by David Solomon in the 1960s (and reaffirmed by the research of Cirillo and of Stuster and Coffman in intervening years) is unequivocal in its determination that traveling at or a few mph above the average speed of traffic minimizes the risk of vehicular accidents. As noted previously, the states that raised their interstate highway speed limits in recent times to 80 and even 85 mph with support from traffic speed studies have seen the beneficial effects of such a change.

The National Motorists Association stands ready to offer public support for and assistance to the ITD for a speed limit increase justified by engineering analysis.

Gary Biller

June 30, 2014

Mr. Biller,

Thank you for expressing the support of your organization for the raising of speed limits on the interstate highways. ITD is confident with the findings of the engineering and speed studies and we believe those conclusions will be carried with the concurrence of the Idaho Transportation Board at its next scheduled meeting in July. If the speed limit changes are approved, ITD staff will carry through with the increase as directed.

I apologize for not replying to your email last week. At your request, ITD is preparing the engineering documents to be posted on a web site and we will make it publically available when it is prepared. I am also forwarding your comments to the Board for consideration.

Thank you again for the support of the NMA. If you have any other questions or comments, please feel free to contact me again,

Nathan Jerke
ITD, District 4

The NMA comments were submitted to the Idaho Transportation Board for review along with those from AAA Idaho and others such as the Idaho Trucking Association. The Board’s unanimous conclusion? Proceed with the 80 mph limits for rural interstates in the southern portion of the state as justified by ITD’s studies.

This is a victory for motorists in Idaho. Logic and proven traffic engineering principles don’t always trump mega-financial interests. In this case they did.

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