State v. Little ( 2023 )

788 July 6, 2023 No. 346
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
PATRICK THOMAS LITTLE,
Defendant-Appellant.
Crook County Circuit Court
21CR04274; A176593
Annette C. Hillman, Judge.
Submitted January 26, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
KAMINS, J.
Reversed and remanded.
Cite as 326 Or App 788 (2023) 789
KAMINS, J.
Defendant appeals from a judgment of conviction,
entered after a conditional guilty plea, for one count of driv-
ing while suspended or revoked, ORS 811.182. He argues
that the trial court erred when it denied his motion to sup-
press the evidence discovered during a traffic stop. In par-
ticular, he contends that a single, minor deviation over the
fog line is not enough to support a citation for failing to drive
within a lane. See ORS 811.370(1)(a) (requiring that a driver
“[o]perate the vehicle as nearly as practicable entirely within
a single lane”).1 We conclude that a momentary and minor
deviation over a lane line is not a violation of ORS 811.370
and therefore reverse and remand.
We review the trial court’s ruling denying defen-
dant’s motion to suppress for legal error and are bound by
the trial court’s factual findings if there is any constitution-
ally sufficient evidence in the record to support them. State
v. Maciel-Figueroa, 361 Or 163, 165-66, 389 P3d 1121 (2017).
In order to stop and detain a person for a traffic violation,
an officer “must have probable cause to believe that the per-
son has committed a violation.” State v. Rabanales-Ramos,
273 Or App 228, 234, 359 P3d 250 (2015). Probable cause
has two components: (1) at the time of the stop, the officer
must subjectively believe that a violation has occurred; and
(2) that belief must be objectively reasonable under the cir-
cumstances. State v. Derby, 301 Or App 134, 138, 455 P3d 1009
(2019). “For an officer’s belief to be objectively reasonable, the
facts, as the officer perceives them, must actually constitute a
traffic violation.” Id. Whether defendant’s conduct constitutes
a violation of ORS 811.370 presents a question of statutory
construction, which we review for legal error. Dept. of Human
Services v. Hobart, 318 Or App 52, 55, 507 P3d 299 (2022).
1
ORS 811.370(1) provides:
“Except as provided in subsection (2) of this section, a person commits
the offense of failure to drive within a lane if the person is operating a vehi-
cle upon a roadway that is divided into two or more clearly marked lanes for
traffic and the driver does not:
“(a) Operate the vehicle as nearly as practicable entirely within a single
lane; and
“(b) Refrain from moving from that lane until the driver has first made
certain that the movement can be made with safety.”
790 State v. Little
Turning to the facts, at approximately 9:00 p.m.
Sergeant Durheim saw a small blue car turn right from
Highway 380 onto Juniper Canyon Road. Both of those roads
have center lines dividing oncoming traffic and fog lines on
the outside of each lane. As defendant turned right, Durheim
saw defendant’s back passenger side tire move over the fog
line by the width of a tire, approximately six inches, and
stay there for approximately 1.5 seconds. Durheim testified
that there was nothing preventing defendant from traveling
within a single lane without crossing the fog line on either
Highway 380 or Juniper Canyon and he subjectively believed
that he had probable cause to stop defendant for a violation
of ORS 811.370. He stopped defendant and asked him for
his driver’s license. Defendant admitted that his license was
revoked, a fact that Durheim confirmed through dispatch.
Defendant was cited for driving while suspended or revoked,
ORS 811.182.
Defendant filed a motion to suppress the fruits of
the traffic stop, arguing that Durheim lacked probable cause
that defendant had committed a traffic violation, because
he observed only a de minimis deviation from the lane. The
trial court determined that it was practicable for defendant
to stay in his lane, and though it found that defendant’s vio-
lation was “de minimis,” it denied the motion to suppress
because “no appellate court has decided that a de minimis
touch of a lane line does not violate ORS 811.370.” Defendant
then entered a conditional guilty plea, reserving his right to
appeal the denial of the motion to suppress.
Defendant reprises his argument on appeal. The
state responds that defendant’s deviation was no less signif-
icant than other cases in which this court has found there
was sufficient probable cause under ORS 811.370, and points
to our decisions in State v. Husk, 288 Or App 737, 407 P3d
932 (2017), rev den, 362 Or 665 (2018), and State v. Rosling,
288 Or App 357, 406 P3d 184 (2017), rev den, 362 Or 389(2018). Additionally, the state posits that the text of the stat-
ute does not provide an exception for a single, momentary
deviation.2
2
The state argues in a footnote that even if the statute did not prohibit minor
lane deviations, that would not implicate whether the officer had probable cause
to investigate, because probable cause is a lower standard that does not require
Cite as 326 Or App 788 (2023) 791
Although we have previously been called upon to
interpret the meaning of ORS 811.370(1)(a), we have declined
to reach the issue of whether a momentary and minor touch-
ing of a lane line is a violation of ORS 811.370. See Derby,
301 Or App at 140 n 1 (“If a driver is moving forward in a
clearly marked lane, any deviation from the lane—except
possibly a truly de minimis one—may constitute failure to
maintain a lane.”); Rosling, 288 Or App at 362 (“We agree
with the state, although, in doing so, we need not reach the
issue whether truly de minimis touching of a lane line is an
offense under ORS 811.370.”); State v. McBroom, 179 Or App
120, 125 n 3, 39 P3d 226 (2002) (“This is not a case in which
defendant’s car’s tires touched the center line only briefly.
We accordingly need not decide whether that act, standing
alone, would give an officer probable cause to believe that
a driver had failed to operate his or her car ‘as nearly as
practicable entirely within a single lane.’ ” (Quoting ORS
811.370(1)(a).)). To resolve that question, we must discern
the intent of the legislature in enacting ORS 811.370.
When we interpret a statute, “[w]e ascertain the
legislature’s intentions by examining the text of the statute
in its context, along with relevant legislative history, and,
if necessary, canons of construction.”3 State v. Cloutier, 351
Or 68, 75, 261 P3d 1234 (2011) (citing State v. Gaines, 346
Or 160, 171-73, 206 P3d 1042 (2009)). “[W]e give primary
weight to the text and context of the disputed statutory
terms,” because “there is no more persuasive evidence of the
intent of the legislature than the words by which the legis-
lature undertook to give expression to its wishes.” Kinzua
Resources v. DEQ, 366 Or 674, 680, 468 P3d 410 (2020) (cita-
tions and internal quotation marks omitted).
We begin and end our analysis with the text. ORS
811.370(1)(a) provides that a person commits the offense of
failure to drive within a lane if the driver does not “[o]perate
certainty. We reject that contention because to satisfy the standard for probable
cause, “the facts, as the officer perceives them, must actually constitute a traffic
violation.” Derby, 301 Or App at 138.
3
The parties have not cited, and we have not found any legislative history
that is helpful to our analysis. See ORS 174.020(3) (“A court may limit its consid-
eration of legislative history to the information that the parties provide to the
court.”).
792 State v. Little
the vehicle as nearly as practicable entirely within a sin-
gle lane[.]” We have previously interpreted “within a single
lane” to mean that drivers must stay “within” the lines, and
does not permit driving “on” the lines. McBroom, 179 Or App
at 124. We also construed “practicable” to mean “possible
to practice or perform,” “capable of being put into practice,
done or accomplished,” or “feasible.” Id. at 124-25 (citation
and internal quotation marks omitted). Were those the only
words in the statute, that language would indicate that the
statute prohibits any and all departures onto the lane lines,
because ORS 811.370 would require that a driver operate
their vehicle as close to within the lane lines as feasible.
However, the text mandates that a driver operate
the vehicle within a single lane “as nearly as practicable.”
ORS 811.370(1)(a) (emphasis added). The statute does not
define, nor have we previously interpreted, the word “nearly”
in this context. “In the absence of any evidence to the con-
trary, we assume that the legislature intended to give those
words their plain, natural, and ordinary meaning, relying
on dictionaries that were in use at the time the statute was
enacted.” State v. Delaurent, 320 Or App 191, 195, 514 P3d
113, rev den, 370 Or 303 (2022) (citations and internal quota-
tion marks omitted). “Nearly” is defined in relevant part as
“within a little : all but : almost” and “with an approach to
completeness or exactness: approximately.” Webster’s Third
New Int’l Dictionary 1510 (unabridged ed 2002). Those defi-
nitions demonstrate that the legislature did not intend to
require exact compliance with ORS 811.370 at all times. The
phrase “as nearly as practicable” thus provides flexibility to
drivers as they attempt to comply with the requirement to
stay “within a single lane.” ORS 811.370(1)(a).
That interpretation of the phrase “as nearly as prac-
ticable” is consistent with the way the Supreme Court has
interpreted that phrase in the context of other statutes. See,
e.g., Farmer v. Baldwin, 346 Or 67, 77, 205 P3d 871 (2009)
(identifying the phrase “as nearly as practicable” as one of
the key terms indicating that ORAP 5.90 “does not require
exact compliance”); Hartung v. Bradbury, 332 Or 570, 587,
33 P3d 972 (2001) (citing the phrase “as nearly as practica-
ble” in ORS 188.010(1) as demonstrating “the flexibility that
Cite as 326 Or App 788 (2023) 793
is built into the statutes and rules”). It is also consistent
with the legislature’s policy goals in enacting the vehicle
code. The purpose of the vehicle code is “[t]o provide maxi-
mum safety for all persons who travel or otherwise use the
public highways of this state[.]” ORS 801.020(11)(a). A driver
who makes a momentary and minor deviation in crossing or
touching a lane line is not necessarily creating a safety risk
with their conduct.
Had the legislature wanted to prohibit any lane
deviations in the absence of circumstances making compli-
ance impracticable, the legislature could have done so by,
for example, using the phrase “whenever practicable.” See
Webster’s at 2602 (defining “whenever” in relevant part as
“at any or all times that : in any or every instance in which”).
The legislature knows how to indicate a mandatory obliga-
tion. See, e.g., ORS 163.741(2) (“Whenever a stalking protec-
tive order * * * is served on a respondent, the person serving
the order shall immediately deliver to the county sheriff a
true copy of proof of service[.]”); ORS 618.236(1) (“Whenever
any commodity or service is sold, offered or exposed for
sale, by weight, measure or count, the price shall not be
misrepresented[.]”); Preble v. Dept. of Rev., 331 Or 320, 324,
14 P3d 613 (2000) (“Shall is a command: it is used in laws,
regulations, or directives to express what is mandatory.”
(Citation and internal quotation marks omitted.)); Office
of Legislative Counsel, Bill Drafting Manual 4.4 (18th ed
2018) (“To impose an obligation to act, use ‘shall.’ ”).
Our conclusion is reinforced by the fact that con-
struing the statute to allow for some lane deviations gives
meaning to the word “nearly.” See ORS 174.010 (“[W]here
there are several provisions or particulars such construc-
tion is, if possible, to be adopted as will give effect to all.”);
Crystal Communications, Inc. v. Dept. of Rev., 353 Or 300,
311, 297 P3d 1256 (2013) (“As a general rule, we construe
a statute in a manner that gives effect, if possible, to all
its provisions.”). If any and all instances of touching a lane
line would violate the statute, the word “nearly” becomes
superfluous. See Cloutier, 351 Or at 98 (“[A]n interpretation
that renders a statutory provision meaningless should give
us pause[.]”). Therefore, the intent of the legislature is clear
794 State v. Little
that a momentary and minor lane deviation is not a viola-
tion of ORS 811.370.4
We turn to the facts in this case to determine
whether defendant’s conduct constituted a momentary
and minor lane deviation, such that he operated his vehi-
cle as “nearly” as practicable within a single lane. The evi-
dence demonstrates that, as defendant was turning to exit
Highway 380 onto Juniper Canyon Road, his back right pas-
senger tire drove over the fog line by the width of a tire and
stayed there for approximately 1.5 seconds—a momentary
and minor crossing over the fog line that the trial court char-
acterized as “de minimis.” Contrary to the state’s contention
that defendant’s conduct “was no less significant than other
violations that this court has previously concluded were
sufficient to support probable cause,” that single, inciden-
tal crossing of the fog line is the most minor digression we
have had occasion to address, when accounting for both the
number of deviations observed and the safety risk of a given
deviation.5 Accordingly, defendant did not fail to remain “as
4
The policy arguments in favor of limiting officers from stopping citizens
for very minor traffic offenses have been thoroughly explored in scholarly liter-
ature. See, e.g., Harvey Gee, “U Can’t Touch This” Fog Line: The Improper Use of
a Fog Line Violation as a Pretext for Initiating an Unlawful Fourth Amendment
Search and Seizure, 36 N Ill U L Rev 1, 2 (2015) (observing that “police are rely-
ing on statutes as an excuse to pull over cars which may have only momentar-
ily crossed the fog line and where the drivers have done nothing else unlawful”
and that this practice “affords police tremendous leeway to conduct pretextual
stops, unreasonably detain suspects, and unlawfully search vehicles”); Lewis R.
Katz, “Lonesome Road”: Driving Without the Fourth Amendment, 36 Seattle U L
Rev 1413, 1413 (2013) (asserting that “[o]ur streets and highways have become a
police state where officers have virtually unchecked discretion about which cars
to stop for the myriad of traffic offenses contained in state statutes and municipal
ordinances”); Melanie D. Wilson, “You Crossed the Fog Line!”—Kansas, Pretext,
and the Fourth Amendment, 58 U Kan L Rev 1179, 1180 (2010) (noting that data
from Kansas indicates that Kansas police “rely on minor traffic violations as an
excuse” to stop certain vehicles and noting that “[r]ecently, officers have relied on
lane violations” in particular).
5
See, e.g., Husk, 288 Or App at 738 (defendant’s car briefly straddled new
lane dividing line as lane widened from one lane into two lanes); Rosling, 288
Or App at 359 (defendant’s tire touched the left lane line before crossing over the
right fog line); State v. Wentworth, 252 Or App 129, 134-35, 284 P3d 1250 (2012)
(declining to address defendant’s unpreserved argument that crossing the fog
line by one or two inches for one or two seconds was too incidental and momen-
tary to satisfy ORS 811.370); State v. Vanlom, 232 Or App 492, 494, 222 P3d 49
(2009) (defendant’s left tires drove onto double yellow center line and then his
right tires drove onto fog line three times); McBroom, 179 Or App at 122 (defen-
dant’s tires drifted onto one of the double yellow center dividing lines and stayed
Cite as 326 Or App 788 (2023) 795
nearly as practicable entirely within a single lane.” ORS
811.370(1)(a).
Because such a momentary and minor lane devia-
tion is not a violation of ORS 811.370, Durheim did not have
probable cause to stop defendant for failing to stay within
his lane, and defendant’s motion to suppress should have
been granted.6
Reversed and remanded.
there for 300 feet or more); cf. State v. Roberts, 241 Or App 589, 591, 251 P3d 232,
rev den, 350 Or 574 (2011) (rejecting defendant’s argument that the fog line is not
a demarcation of a lane such that crossing over the fog lane twice would not be a
violation of ORS 811.370(1)).
6
The phrase “as nearly as practicable entirely within a single lane” is also
contained in section 11-309(a) of the Uniform Vehicle Code (2000). While no uni-
form interpretation of that provision has been adopted across the jurisdictions
that have enacted it, we observe that our interpretation of that language is con-
sistent with the approaches taken by the courts of several other states. See, e.g.,
State v. Marx, 289 Kan 657, 674, 215 P3d 601, 612 (2009) (reasoning that “[t]he
express language employed—‘as nearly as practicable’—contradicts the notion
that any and all intrusions upon the marker lines of the chosen travel lane con-
stitute a violation”); Commonwealth v. Enick, 70 A3d 843, 847 (Pa Super Ct 2013),
rev den, 624 Pa 671 (2014) (distinguishing from the case before it the statutory
language requiring motorists to maintain a single lane “as nearly as practicable,”
because that language “does not foreclose minor deviations”); State v. Prado, 145
Wash App 646, 647, 186 P3d 1186, 1186-87 (2008) (concluding that the “require-
ment that automobile drivers remain within a single lane of travel ‘as nearly as
practicable’ does not impose strict liability” and that “[a] vehicle crossing over a
lane once for one second by two tire widths does not, without more, constitute a
traffic violation”); State v. Livingston, 206 Ariz 145, 148, 75 P3d 1103, 1106 (Ariz
Ct App 2003), rev den (Apr 19, 2004) (determining that the language “as nearly as
practicable” demonstrates “an express legislative intent to avoid penalizing brief,
momentary, and minor deviations outside the marked lines”).