State v. Pratt

Dooley J.

¶ 1. Defendant appeals the civil suspension of his driver’s license, arguing that the district court erred by denying his motion to suppress because there was no lawful basis for the stop leading to his arrest. We affirm.

¶ 2. Early in the morning of April 21, 2005, a state trooper on patrol approached defendant’s vehicle from behind on Interstate 89 in Waterbury, Vermont. After noticing defendant drift back and forth within his lane, the trooper activated his in-car video camera and followed the vehicle for several miles. During this period, defendant’s vehicle continued to drift within its lane. The trooper eventually stopped defendant and approached the vehicle. Noticing a faint smell of alcohol, the trooper questioned defendant and asked him to perform field sobriety tests. Defendant’s performance indicated he might be under the influence of alcohol. When defendant refused to take a preliminary breath test, the trooper arrested him on suspicion of driving under the influence (DUI). He was charged with DUI, and his license was suspended after a Datamaster result showed a blood-alcohol concentration of .102.

¶ 3. In both his criminal case and his civil suspension case, defendant filed a motion to suppress all evidence obtained as a result of the stop. Defendant argued that the officer did not have reasonable suspicion necessary to stop his vehicle. The trial court held a hearing on the motion to suppress. At the hearing, the state trooper testified that he observed defendant’s car move from the center line to the fog line two times before he activated his in-car camera and three or four more times afterwards. The trooper explained that “based on [his] training and experience” he recognized this type of drifting as a sign of impairment. The district court found the trooper’s testimony credible and consistent with the video footage. The court concluded that the evidence “of 5-6 drifting movements within a single lane of travel over the course of some 5 miles provide[d] a sufficient basis of suspicion to justify the stop of defendant’s vehicle.” Consequently, the court denied defendant’s motion to suppress.

¶ 4. On appeal, defendant argues that the district court erred in denying his motion to suppress because the state trooper did not have a lawful basis to stop him. A motion to suppress involves a mixed question of law and fact. State v. Simoneau, 2003 VT 83, ¶ 14, 176 Vt. 15, 833 A.2d 1280. We will uphold the trial court’s findings of fact unless they are clearly erroneous. Id. “The question of whether the facts as found met the proper standard to justify a stop is one of law.” Id. In this case, we conclude that the court’s findings are supported by the evidence and that these findings support the conclusion that the officer had a reasonable suspicion of criminal activity, namely that defendant was driving while intoxicated.

¶ 5. A legal investigatory stop is justified if a police officer has a reasonable and articulable suspicion of criminal activity. State v. Bruno, 157 Vt. 6, 11, 595 A.2d 272, 275 (1991). “The officer must have more than an unpartieularized suspicion or hunch of criminal activity, but needs considerably less than proof of wrongdoing by a preponderance of the evidence.” Simoneau, 2003 VT 83, ¶ 14. Reasonable suspicion is assessed by examining the totality of the circumstances. State v. Lamb, 168 Vt. 194, 196-97, 720 A.2d 1101, 1103 (1998). As such, we have upheld investigatory stops for suspicion of DUI based on erratic driving. See State v. Boyea, 171 Vt. 401, 410, 765 A.2d 862, 868 (2000) (relying on information that vehicle was acting “erratically” — defined in dictionary as wandering or without certain course — to support reasonable suspicion that driver might be intoxicated); Bruno, 157 Vt. at 11, 595 A.2d at 275 (concluding that officer’s observation of defendant drifting in his lane, pulling off road, and then operating his vehicle briefly without headlights was sufficient to give rise to reasonable and articulable suspicion of DUI). The reasonableness of the stop is assessed by “[bjalancing the public’s interest in safety against the relatively minimal intrusion posed by a brief investigative detention.” Boyea, 171 Vt. at 410, 765 A.2d at 868 (explaining that the serious threat to public safety posed by intoxicated drivers justified officer’s stop, given report that defendant was driving erratically and the minimal intrusion posed by stop).

¶ 6. Here, the trooper observed defendant drift back and forth within his lane several times over a distance of approximately five miles. Defendant argues that drifting within a lane of traffic is not a traffic violation and, thus, cannot serve as the basis for a stop. We decline to adopt such a bright-line rule. Although we agree that most of our decisions involve instances in which the stop is justified by a violation of a law specifically regulating safe operation or the physical condition of a vehicle, there is no requirement that an officer, having reasonable suspicion of DUI, must also have cause to believe the operator has committed another offense. As discussed above, reasonable suspicion of driving while intoxicated is assessed by examining the totality of the circumstances and consequently may be supported by evidence of erratic driving, whether or not it amounts to a specific traffic violation. Further, we rely on the expertise of the officer in recognizing signs of impaired operation.

¶ 7. In upholding the district court’s decision that reasonable suspicion of impaired operation existed in this case, we note that the overwhelming weight of authority from other jurisdictions holds that repeated intra-lane weaving can create reasonable suspicion of impaired operation. See Gaddis ex rel. Gaddis v. Redford Twp., 364 F.3d 763, 771 (6th Cir. 2004) (concluding that officer had reasonable suspicion of drunk driving where defendant “weaved twice to the left to touch the dividing line in a fairly short span”); People v. Greco, 783 N.E.2d 201, 204-05 (Ill. App. Ct. 2003) (holding that “erratic driving, including weaving within a single lane, is sufficient to justify a traffic stop”; collecting cases from Illinois and many other jurisdictions, and observing that “research reveals a general consensus that weaving within a single lane may be a basis for a valid traffic stop”); State v. Tompkins, 507 N.W.2d 736, 737, 739 (Iowa Ct. App. 1993) (concluding that weaving several times within a mile from center line to right boundary line of road created reasonable suspicion of impairment; collecting cases from other jurisdictions); State v. Field, 847 P.2d 1280, 1281-82, 1284-85 (Kan. 1993) (concluding that weaving within lane four times over several city blocks created reasonable suspicion; collecting cases). Decisions superficially to the contrary tend to involve isolated incidents of conduct or conduct less clearly related to impairment. See State v. Caron, 534 A.2d 978, 979 (Me. 1987) (holding officer’s observation of “brief, one time straddling of the center line of an undivided highway” did not justify stop (emphasis added)).

¶ 8. Contrary to the dissent’s claim, we do not announce a “bright line” rule that intra-lane weaving creates reasonable suspicion to stop in all cases. Instead, we continue to hold that reasonable suspicion must be based on the totality of the circumstances. See Lamb, 168 Vt. at 196-97, 720 A.2d at 1103. Thus, in reaching our decision, we do not quarrel with the point of some of the dissent’s cases that slight degrees of intra-lane weaving alone do not justify a stop. See Warrick v. Comm’r of Pub. Safety, 374 N.W.2d 585, 585-86 (Minn. Ct. App. 1985) (finding no reasonable suspicion where intra-lane weaving was “ ‘subtle’ and involving inches”); Salter v. North Dakota Dep’t of Transp., 505 N.W.2d 111, 112, 114 (N.D. 1993) (finding no reasonable suspicion where intra-lane weaving involved “slight movement back and forth”). Nor do we quarrel with the dissent’s cases that hold that a bright-line rule is inappropriate. See State v. Otto, 566 N.W.2d 509, 511 (Iowa 1997); State v. Post, 2007 WI 60, ¶ 18, 733 N.W.2d 634.¹ Indeed, we believe it is the dissent that is looking for a hard rule that intra-lane weaving alone cannot create reasonable suspicion of impairment. We stand by our assessment that the overwhelming majority of the precedents from other jurisdictions support our decision.

¶ 9. In this case the officer testified that the intra-lane weaving he observed showed that there was a reasonable suspicion of impaired operation, based on his training and experience. The trial judge relied on his testimony,² along with the videotape showing defendant’s operation, to find that there was reasonable suspicion of impaired operation. Based on our prior decisions and the authority from around the country, we affirm that decision.

Affirmed.

1 We believe that both the Iowa and Wisconsin courts would affirm on the facts of this case. The Iowa court cited State v. Dorendorf, 359 N.W.2d 115 (N.D. 1984), as its example of an instance in which intra-lane weaving could properly justify a stop. Dorendorf is very similar to this case, especially in its reliance on the experience and training of the arresting officers to recognize the signs of impaired operation. Id. at 117. In addition, the Wisconsin Supreme Court rejected defendant’s argument that intra-lane weaving cannot justify reasonable suspicion where lateral movements are not “erratic, unsafe, or illegal.” Post, 2007 WI 60, ¶ 26. In giving examples of when intra-lane weaving would not provide reasonable suspicion, it cited cases in which the weaving was not significant like Salter and Warrick. Id. ¶ 19 n.5.

2 Fact-finding is for the trial court and not this Court. Simoneau, 2003 VT 83, ¶ 14. The dissent finds that the officer admitted that defendant’s driving did not differ from any other driver on the road based on one of the arresting officer’s answers during cross-examination. The trial court made no such finding, and because that “admission” would be wholly inconsistent with the rest of the officer’s testimony, we conclude that the court’s findings are not clearly erroneous.