How is driving affected by a Governor’s State of Emergency in Delaware? If we encounter a significant snow or ice storm this winter (it could happen), we may hear on the news or see in the paper that the Governor has issued a State of Emergency and there may be a driving restriction attached. There will likely be a press release or other such decree from the Governor’s Office and it may be accompanied by an Executive Order or other such document containing a series of “whereas” statements. It is helpful for us to know what those restrictions are, where they are codified, and what they mean so we can inform our local constituents…correctly.
The legal basis for emergency management actions is found in the Delaware Code at Title 20, Chapter 31 (https://delcode.delaware.gov/title20/c031/index.shtml). More specifically, the Governor’s powers and authority are established in Subchapter III and the Governor may issue a Warning, a Restriction, or a Ban.
A Level 1 Driving Warning can be issued with or without an emergency order. The Warning addresses the use or operation of motor vehicles on Delaware roads of all types. You might say that the Warning says everyone that doesn’t need to, should consider staying off the roads but if they do they should exercise extra caution for themselves and others. What it does say is that a “Level 1 Driving Warning means:
- Any person operating a motor vehicle shall exercise extra caution in the operation of their motor vehicle.
- Motorists are encouraged not to operate a motor vehicle on the State’s roadways unless there is a significant safety, health, or business reason to do so.
During an emergency or disaster, the Governor may issue a Restriction or Ban for a portion or all of the State. A Level 2 Driving Restriction means that no person shall operate a motor vehicle on Delaware roadways, except for those designated as essential personnel. The full text of Title 20 (below) is important and the meaning of public utilities is what you probably think it is, but can be found at §3116 of Title 20.
What happens if someone ignores the Restriction? §4176D of Title 21 tells us that:
- “No person shall operate a motor vehicle on a highway, express highway, roadway or private road as defined in §101 of this title when a Level 3 Driving Ban or a Level 2 Driving Restriction has been activated during an emergency, unless the person is a first responder, essential personnel, or a waiver has been granted, pursuant to §3116(b)(12) of Title 20.”
- “Whoever violates this section shall for the first offense be fined not less than $25 nor more than $115. For each subsequent like offense, the person shall be fined not less than $50 nor more than $200, or imprisoned not less than 10 nor more than 30 days, or both.”
From Title 20:
Level 2 Driving Restriction: A “Level 2 Driving Restriction” shall mean that no person shall operate a motor vehicle on Delaware roadways when a Level 2 Driving Restriction has been activated, except for persons designated as essential personnel including operators of snow removal equipment employed or contracted by a public or private entity. “Essential personnel” for purposes of this subsection shall mean those employees and/or personnel who are necessary to maintain the core functions of a government body or entity, and to maintain the health and safety of the people in Delaware by providing services provided by public utilities as defined in § 102(2) of Title 26, health-care services, and food and fuel deliveries during a state of emergency, regardless of whether they are employed by a public or private entity. A waiver from a Level 2 Driving Restriction may be granted when a significant safety, health or business necessity is shown for issuing such a waiver. The Secretary of the Department of Safety and Homeland Security shall promulgate rules and regulations necessary to carry out the provisions of this subsection. An employer or entity which has not been granted a waiver shall not terminate, reprimand, discipline, or in any way commit any adverse employment action against an employee who, as a result of the activation of the a Level 2 Driving Restriction, fails or refuses to report to work during the pendency of the driving restriction. Any person or entity who violates an activated level 2 driving restriction under this subsection shall be in violation of § 4176D of Title 21.
On the other hand, a Level 3 Driving Ban is when no person shall operate a motor vehicle on Delaware roadways, except for those designated as first responders and essential personnel. Again, the full text of Title 20 is shown below.
From Title 20:
Level 3 Driving Ban: A “Level 3 Driving Ban” shall mean that no person shall operate a motor vehicle on Delaware roadways when a Level 3 Driving Ban has been activated, except for those persons designated as first responders and essential personnel, including public utilities as defined in § 102(2) of Title 26 and operators of snow removal equipment employed or contracted by a public or private entity, pursuant to this chapter and the plans set forth thereunder, and by executive order of the Governor. All businesses, professional offices, organizations, entities, etc. shall be encouraged to take appropriate protective actions to protect their citizens, customers, and employees by termination of operations or shelter in place. An employer of a public or private entity shall not terminate, reprimand, discipline, or in any way commit any adverse employment action against an employee who, as a result of the activation of a Level 3 Driving Ban, fails or refuses to report to work during the pendency of the driving ban. Any person or entity in violation of an activated Level 3 Driving Ban under this subsection shall be penalized pursuant to § 3125 of this title.
So again, what happens if someone ignores the Ban? §3125 of Title 20 tells us that, “except where specified penalties are prescribed in this chapter, whoever violates this chapter or an emergency order issued pursuant to this chapter may be fined not less than $50 nor more than $500 or imprisoned up to 6 months for each violation.”
In summary, an Executive Order from the Governor can establish a Warning, a Restriction, or a Ban and the latter two are enforceable with fines and imprisonment. It does appear that §3125 of Title 20 overlaps §4176D of Title 21, since the latter mentions both Level 2 Restrictions and Level 3 Bans, but we’ll leave that to the law talking folks.
The bottom line is that during significant storms, unnecessary traffic on the roadways is a problem for snow and ice fighters and the Delaware Code prescribes actual penalties for those that defy the Governor’s order. As such, it might be helpful to diplomatically draw the public’s attention to these penalties and caution them that the Governor’s Executive Orders can have consequences, so can they please cooperate with us.
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