Opinion No. ( 1993 )

The Honorable Mark Riable State Representative 16611 Burlington Road Little Rock, Arkansas 72211

Dear Representative Riable:

This is in response to your request for an opinion on the use of alternating headlight flasher systems on private construction company highway maintenance and improvement vehicles. Specifically, you note that the state police use such devices, and they have proved very effective. You inquire as to whether the use of similar devices by a private construction company when it is engaged in doing maintenance work on a highway or road, either while the vehicles are moving or stationary, is violative of any state or federal law.

It is my opinion that the answer to your question is "no." The particular device, however, must be approved by the Highway Commission, and any use of such lights by a private construction company must be approved by the Commissioner of the Office of Motor Vehicles.

It should be noted initially that A.C.A. § 27-36-208(c) provides that: "Flashing lights are prohibited except on an authorized emergency vehicle, school bus, or on any vehicle as a means of indicating a right or left turn, or the presence of a vehicular traffic hazard requiring unusual care in approaching, overtaking, or passing." See also A.C.A. § 27-36-217 (d).

Section 27-49-219(d) defines the term "authorized emergency vehicle," as including, among other vehicles:

(1)(C) Motor vehicles owned by the state, county, and municipal agencies whose use is determined by the state agency to be required for dangerous or hazardous services and motor vehicles owned by public service corporations or private individuals whose use is determined by the Commissioner of Office of Motor Vehicle, in accordance with regulations established by the commissioner to prevent abuses thereof, to be for extra hazardous service, may be equipped with amber flashing or rotating emergency or warning lights which shall not qualify it as an emergency vehicle, but which shall, during hazardous uses thereof, display its amber flashing or rotating emergency or warning light in order that other motorists and the public may be aware of the special or hazardous use of the vehicle and shall exercise caution in approaching the vehicle at all times while the amber flashing or rotating emergency or warning light is in operation. All hazardous service vehicles shall conform to regular traffic signals and speed limits during their operation. [Emphasis added.]

See also A.C.A. § 26-36-305.

The private construction company must therefore get the approval of the Commissioner of the Office of Motor Vehicles prior to using the flashing lights. Additionally, the particular device employed must be one approved by the Highway Commission under A.C.A. § 27-36-201 (Highway Commission to approve or disapprove lighting devices and to issue and enforce regulations establishing standards and specifications for the approval of lighting devices, and their installation, adjustment and aiming . . .).

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh