Opinion No. (1978) ( 1978 )

REQUESTED BY: Dear Senator:

This letter is in response to your inquiry concerning whether the Department of Roads pursuant to section 60-1308, R.R.S. 1943, has the authority to require any truck to deviate from its normal route to be weighed at a state scale. If the Department does have this power, you have asked at what distance would trucks not be required to deviate from their normal course.

Weighing stations were created by the Legislature for the expressed purpose of promoting public safety, preserving and protecting the state highways and bridges, preventing immoderate and destructive use of the same, and to enforce the motor vehicle registration laws. Department of Roads' personnel designated as peace officers to operate weigh stations have the authority to enforce the laws relating to size, weight, load, and registration of said vehicles, buses, motor trucks, truck-tractors, and trailers.

Section 60-1308, states:

"The driver of any towed vehicle, motor truck, truck-tractor, or trailer, who shall fail to stop at or who shall knowingly pass or by-pass any state weighing station, when the same is open and being operated by peace officers, . . . shall be deemed guilty of a misdemeanor. . ."

The question then becomes whether failure to deviate from a normal route constitutes knowingly passing or bypassing a state weigh station. This question has never been addressed by the Legislature in adopting or amending this section. General rules of construction require words and phrases be construed according to the common and approved usage of the language.

Webster's Dictionary defines bypass as `moving by an indirect or side path, or to go around.' Knowingly implies a cognitive act. Therefore, applying those definitions, it would appear to be a violation of this section to travel around or by an indirect path and in so doing, purposefully, bypass or avoid a state weigh station.

As long as the driver of a specified vehicle does not plot his course so as to take a path which he knows will bypass the state weigh station he may plan his business course and it is not required that he deviate from his intended route, nor can the Department of Roads require him to deviate from his route. Whether a driver has intentionally avoided a weigh station is a subjective determination, to be made by the peace officer, based on the facts in each case.