State v. Wright , 94 Or. App. 468 ( 1988 )

765 P.2d 1251 (1988) 94 Or.App. 468

STATE of Oregon, Appellant,
v.
Mary May WRIGHT, Respondent.

87-61481; CA A47700.

Court of Appeals of Oregon.

Argued and Submitted July 15, 1988. Decided December 21, 1988. Reconsideration Denied February 10, 1989.

Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Douglas R. Wilkinson, Springfield, argued the cause for respondent. With him on the brief was Thorp, Dennett, Purdy, Golden & Jewett, P.C., Springfield.

Before RICHARDSON, P.J., JOSEPH, C.J., and DEITS, J.

RICHARDSON, Presiding Judge.

The state appeals a pretrial order suppressing evidence obtained after defendant's vehicle was stopped. The court concluded that the officer's observations of defendant's driving did not support a reasonable suspicion that she was driving under the influence of intoxicants and that, consequently, the stop was unlawful. We reverse.

There is no dispute about the evidence. The trial court accepted the testimony of the arresting officer who was the only witness to testify during the hearing on the motion to suppress. Although the court orally discussed the evidence and its ruling, it did not make specific findings of fact. The order allowing defendant's motion stated only "that the officer lacked a reasonable suspicion of criminal activity on which to base a stop of the defendant."

The officer was driving southbound on a wide two lane highway. He passed defendant's northbound vehicle, made a u-turn and followed it. He did not estimate the vehicles speed but recalled that it was not unusual. The officer testified that, as he followed defendant

"[t]he vehicle was jerking back and forth and left to right. There, the lighting on the expressway — there is no light specifically on the expressway. * * * I could not see the center line or the fog line to see if the vehicle was traveling over either of those lines. Just that it was traveling, the vehicle was traveling several feet to the left and right * * * in an erratic manner."

The northbound lane in which defendant was traveling gradually widens into two lanes, with the right lane being a turn lane. Defendant's vehicle made a "very quick motion" into the right lane, even though it gradually widened. The officer stopped defendant and subsequently arrested her.

The question is whether the facts that the officer observed supported a reasonable suspicion that defendant was driving under the influence of intoxicants. See ORS 131.605(4). The trial court, in its oral discourse, mentioned State v. Bailey, 51 Or. App. 173, 624 P.2d 663, rev. den. 291 Or. 1, 631 P.2d 340 (1981), and State v. Perry, 39 Or. App. 37, 591 P.2d 379 (1979). It noted that those cases involved a driver weaving and expressed concern that the appellate courts had not decided that "jerking" is a basis for a stop. The particular type of driving activity is not material. If the activity is such that it supports a reasonable suspicion that the driver is influenced by intoxicants, the stop is appropriate. Indications that a driver is impaired may come in many ways. See State v. Madden, 89 Or. App. 21, 747 P.2d 367 (1987), rev. den. 305 Or. 274, 752 P.2d 1220 (1988); State v. Ratliff, 82 Or. App. 479, 728 P.2d 896 (1986), aff'd 304 Or. 254, 744 P.2d 247 (1987); State v. Leis, 58 Or. App. 403, 648 P.2d 1345, rev. den. 293 Or. 653, 653 P.2d 998 (1982). In this case, defendant's erratic driving reasonably indicates that the driver was impaired. The court erred in granting the motion to suppress.

REVERSED AND REMANDED.