dissenting.
Because defendant did not turn or change lanes, he did not violate ORS 811.400(1).1 Rather, he was proceeding to enter Highway 126 on a lane that merged into that highway after the divider lines had run out. He was required to look out for and to yield the right of way to vehicles on the arterial highway. ORS 811.285.2 There is no contention or evidence that he did not do that.
The situation here is closely analogous to that involved in State v. Bea, 107 Or App 118, 810 P2d 1328 (1991), in which the defendant had failed to signal when he turned left at an “L” intersection of two streets; when he failed to give a signal, he was stopped by a police officer. We held that, because the defendant’s “only other options were to turn around or to proceed into the high school parking lot, ” *745107 Or App at 121, he was not required by ORS 811.400(1) to give a turn signal. The majority here relies on that statute to require defendant to give a signal. We stated in State v. Bea, supra:
“The purpose of the code is satisfied by requiring a signal only when a motorist intends to deviate from the presumed course.” 107 Or App at 121.
That is precisely the situation here: Drivers approaching on Highway 126 were notified in advance of the merging lane on which defendant was travelling; they knew that cars that were in the merging lane had to merge into traffic on the highway, to which defendant was required to yield. A turn signal would have told them nothing. Neither would it have told the driver behind him anything. All knew that defendant was merging onto the highway. Defendant’s only options to merging onto the highway were to stop or to run off onto the shoulder.
The officer testified that he was looking for a reason to stop defendant and admitted that he had never stopped anyone else for an “unsignaled lane change” at that location. For good reason.
State v. Thomas, 104 Or App 126, 799 P2d 208 (1990), on which the majority relies, is inapplicable. There, the defendant moved from a parking lane onto the traffic — a distinct lane change to which ORS 811.400(1), by its express terms, applies. Here, there is a lane disappearance, not a lane change.
Because defendant did not violate ORS 811.400(1), the stop was invalid. For that reason, I would reverse, and, therefore, dissent.
ORS 811.400(1) provides:
“A person commits the offense of failure to use an appropriate signal for a turn, lane change or stop if the person is operating a vehicle that is turning, changing lanes, stopping or suddenly decelerating and the person does not make the appropriate signal under ORS 811.395 by use of signal lamps or hand signals.”
ORS 811.285 provides:
“(1) Aperson commits the offense of failure of a merging driver to yield the right of way if the person is operating a vehicle that is entering a freeway or other arterial highway where an acceleration or merging lane is provided for the operator’s use and the operator does not look out for and give right of way to vehicles on the freeway or other arterial highway.
“(2) The offense described in this section, failure of a merging driver to yield the right of way, is a Class C traffic infraction.”