The Defendant appealed a Trial Magistrate’s decision sustaining the charged violation of G.L. 1956 § 31-15-4, Overtaking on the Left.  A driver operating a FedEx truck testified that he was taking a left turn, having employed his left turn signal, when he was struck by a vehicle he never saw, coming from behind him, on his “left front tire – – left front bumper.” The Defendant elected not to testify.  The Trial Judge found the Defendant guilty because he felt that “once the FedEx vehicle begins to take the left-hand turn into the westbound lane of travel, he then has that right of way.”  The Trial Judge further found that there was no evidence that the Defendant attempted to “make his presence known, either through a signal or noise, or to indicate that he attempted to pass on the left, which is contemplated in the statute.” The Defendant appealed, arguing that “the Trial Judge impermissibly shifted the burden of proof by finding there was an absence of evidence as to whether the Appellant sounded his horn before the accident occurred.”

General Laws § 31-15-4 provides that “(1) the driver of a vehicle overtaking another vehicle proceeding in the same direction shall give a timely, audible signal and shall pass to the left at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.” The Appeals Panel noted that while the “burden of persuasion never shifts from the state,” the burden of going forward with evidence may indeed “shift from side to side.” The Panel held that, because the state presented evidence suggesting that the Defendant failed to give an audible signal of his intent to pass on the left, ultimately it was up to the Defendant to rebut the allegation.  Because the Defendant did not provide evidence to the contrary, the Judge’s finding was not error. Due to these reasons, the Appeals Panel sustained the charged violation.