How close is tailgating? What is the following too closely offence?

We’ve all been there. You’re already going slightly over the speed limit in the passing lane when the high beams of a rapidly approaching car begins flashing. The driver behind you starts inching closer, undoubtedly in a hurry to get somewhere, but you’re in the way. Is the driver allowed to follow you closely in attempt to get ahead in traffic? How close does the driver have to be to be considered tailgating? And if the driver is tailgating you, could he or she receive a ticket for following too closely?

What BC’s Motor Vehicle Act says about tailgating

Tailgating is actually termed as “following too closely” in the MVA. There are three important points here. The first point applies to all drivers, and states that any driver must not allow their vehicle to follow another “more closely than is reasonable and prudent” for the speed of the vehicles and traffic conditions at the time. Reasonable and prudent has generally meant, to the courts, whether the driver is aware of potential, foreseeable dangers, or is following so close that they are causing the danger themselves. You’ll notice that the MVA doesn’t specify any quantifiable distance or time of travel for how close you can follow another vehicle.

The second point applies to commercial vehicles and vehicles towing trailers. This point requires drivers of all commercial vehicles and vehicles towing a trailer to not follow, within 60 metres of other vehicles in these classes, though it allows exceptions for when vehicles are overtaking or passing each other.

The third point is for anyone driving in a caravan or motorcade, where a group of vehicles are travelling in procession. With the exception of funeral processions, the drivers in any groups of vehicles travelling in a procession must leave enough room between each vehicle to allow other motorists to merge safely in between individual cars in the convoy. In other words, if you drive in a convoy, leave at least a car-length or so of space between the vehicles in front and behind you in the convoy.

But isn’t it obvious what tailgating is? And what if you rear-end someone?

A 2009 case out of Ontario answers both those questions and established that defining tailgating, or following too closely, is no simple task. In the decision, the judge reviewed case law from both British Columbia and Ontario, and determined that even when an officer makes careful observations about the speeds of the vehicles and how far apart they were before writing up a driver for tailgating, that still does not establish enough proof of a following too closely offence.

In the case, a 10-year veteran of the Ontario Provincial Police testified that he saw a driver speed up to another vehicle, pulling “within less than a motor vehicle length” of the other car, while driving at 115 km/h. The officer testified he observed the tailgating over a distance of 300-500 metres, and saw the trailing car flashing its headlights in an apparent attempt to get the other vehicle to move over. Despite the testimony, the Ontario court said the Crown would need expert evidence to suggest that, at 115 km/h with less than a vehicle length’s distance away from another car, that the behaviour was “inherently unsafe” on an otherwise clear road with good weather.

The judge even included a review of what case law suggested during rear-end collisions, and found that drivers are not necessarily “following too closely” even if they rear-end someone, as there is often evidence suggesting the vehicle ahead suddenly stopped without warning. One judge put it quite succinctly:

“If (following too closely) means that one should keep a distance from the car in front of you that will enable you to avoid a rear end collision even if that car suddenly comes to a stop, then there must be a thousand infractions every day at rush hours on busy traffic arteries in Metropolitan Toronto.”

So is tailgating or following too closely impossible to prove?

Tailgating or following too closely can be proven in court, particularly in civil cases where the standard of proof may be lower. A good example would be a case in BC involving a driver who had to suddenly brake due to a collision up ahead. This particular driver was in the third car in a line of vehicles when everyone hit the brakes for the crash up ahead, only that she was unable to stop in time.

But since the two cars in front of her were able to stop in time, the court determined that “there is no question” the driver was following too closely, and found her to be 100% at fault for rear-ending the other driver.

In another case, a driver was still found partially at fault in a head-on collision, despite the fact that another driver crossed the centre lane into her oncoming car. The court reasoned that the driver was following too closely behind another car, and couldn’t see the oncoming vehicle in time to evade.

The BC Court of Appeal determined that the driver had “less than one second to perceive and react to revealed hazards,” contrary to the provincial government’s guidelines that a driver should stay at least two seconds of travel time behind the vehicle being followed.

So how far back should I stay to avoid tailgating or following too closely?

The guidebook accepted as evidence by the courts is a 1997 edition and some things have changed in the most recent version available on ICBC’s website. However, the guide lays out two ways to determine whether a driver has left enough distance between themselves and the vehicle ahead.

• Counting two seconds with the phrase: “one thousand and one, one thousand and two” and judging the distance travelled in that time period
• Have a full car length ahead of you for every 16 km/h of speed

This can be confusing for some drivers, since at 70 km/h, counting two seconds of drive time would mean a distance of about six or seven car lengths. But when you use the second method and divide 70 km/h by 16 km/h, you would only need a little more than four car lengths.

The updated versions of the guide – there are two – now suggest two seconds of space in good weather and road conditions, three seconds on highways, and four seconds in bad weather conditions. In addition, the guide now recommends leaving at least three seconds when following a motorcycle or large vehicle.

As BC Driving Lawyers, we would suggest that all BC drivers do their part to keep a safe distance from vehicles ahead. A rear-end collision can result in severe injuries for the occupants of all vehicles involved. If you were in a rear-end collision, or are being accused of tailgating or following too closely, give us a call at 604-608-1200. We are driving lawyers, we know driving law, and we will always do our best to assist your case.