To uphold the suspension of a driver’s license after a DUI arrest, San Diego California’s Department of Motor Vehicles must provide sufficient proof that a person was “lawfully” arrested. CA Vehicle Code § 23612(a); Mercer v. DMV (1991) 53 Cal.3d 753.

An officer must see an objective violation of the law, or have reasonable suspicion that a crime is about to occur or has occurred, before an officer may detain an individual. Whren v. United States, (1996) 517 U.S. 806.

An officer’s subjective opinion that an individual’s driving is unusual does not justify a detention in the absence of objective probable cause that there was a violation of the vehicle code. Taylor v. Department of Motor Vehicles, (1995) 36 Cal.App.4th 812.

Although the Officer failed to cite any statutory law that the driver may have violated as probable cause for the stop, one may assume that he is thinking of Vehicle Code § 21658(a), which provides, “A vehicle shall be driven as nearly as practical within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety.”

The case of U.S. v. Colin (9th Cir. 2002) 314 F.3d 439 dealt with reasonable suspicion to stop a defendant based on a violation of V.C. § 21658(a). In that case the defendant traveled on the solid white fog line to the right for approximately ten seconds, then drifted to the left side of the lane where his left wheels traveled along the solid yellow line for approximately ten seconds. The officer cited V.C. § 21658(a) and suspicion of DUI to stop the defendant. The Court held that the stop was illegal, stating:

Touching a dividing line, even if a small portion of the body of the car veers into a neighboring lane, satisfies the state’s requirement that that a driver drive as ‘nearly as practical within a single lane’… It is reasonable that a driver with no cars abreast of him might veer slightly within his lane or over the lane lines in the course of making a lane change to ensure that it is safe to do so. In sum, we conclude that the facts, taken together, support the conclusion that [the officer] lacked probable cause to stop [the defendants] for lane straddling. Id. at 444-445.

The court in Colin went on to state that a mere technical violation of a vehicle code section is not a valid reason to stop a vehicle for suspicion of driving under the influence, observing:

If a failure to follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy. Id. at 447.

Other jurisdictions with nearly identical statutory definitions of lane straddling have come to similar conclusions. Several cases out of Texas have confronted the issue of lane straddling under a remarkably similar statute. In State v. Tarvin (Tex. App. 1998) 972 S.W.2d 910, the court of appeal found no violation of the law where the defendant crossed over the fog line two or three times but there was no other evidence of erratic or unsafe driving. Similarly, in State v. Hernandez (Tex. App. 1998) 983 S.W.2d 867, the court determined there was no infraction where a vehicle drove 18 inches across a lane divider. In both cases the court determined that driving must be unsafe to other vehicles or people already on the road.

A trio of Ohio cases, again decided under a statute nearly identical to § 21658(a), have held that simply crossing a lane divider multiple times is not sufficient to justify the stop of a vehicle. In State v. Drogi (1994) 96 Ohio App.3d 466, State v. Williams (1993) 86 Ohio App.3d 37, and State v. Gullet (1992) 78 Ohio App.3d 138, in each case the court determined that absent driving that endangers other persons or property, crossing lane dividers multiple times did not amount to a violation of the statute to justify a stop.

The Maryland Court of Appeals in Rowe v. Maryland (2001) 769 Atl.2d 879 determined the plain meaning of their similarly-worded statute was promote safety and vehicles were to be driven as much as “possible” in a single lane, and found no violation of the law where the defendant twice crossed the edge line but whose conduct did not amount to unsafe driving.

In Tennessee v. Binnett (2000) 33 S.W.3d 215, the court of appeals found that where the defendant’s vehicle at least touched the yellow line on multiple occasions, but found no evidence of “pronounced weaving or hard swerving,” the stop was unjustified.

Another nearly identical statute in Montana was examined in the case of Montana v. Lafferty (1998) 967 P.2d 363. In Lafferty, police received an anonymous tip that a driver was under the influence. After observing the vehicle cross the fog line to the right twice and drive on the line on another occasion, the arresting officer stopped the vehicle for what he described as “not normal traffic procedure.” The court in Lafferty determined that the defendant’s driving was not “illegal” and ruled the initial stop of the vehicle as not legally justified.

Numerous other defense attorney-litigated decisions concerning the issue of probable cause to stop a vehicle for lane straddling can be found, and the common element to determine whether probable cause to stop exists depends on the finding of an additional element beyond simple lane straddling. In Arizona v. Livingston (2003) 75 P.3d 1103, another case where a stop based on a similar statute was found to lack probable cause, the court held that the statutory language “demonstrates an express legislative intent to avoid penalizing brief, momentary, and minor deviations outside the marked lines.” Id. at 1106.

California courts have confronted the issue again and again, and each decision finding probable cause for the stop distinguished the case from the Ninth Circuit’s finding in Colin by showing some sort of additional element, usually erratic or dangerous driving. While an appellate department of the Superior Court in People v. Butler (1978) 81 Cal.App.3d Supp. 6, held that a conviction for lane straddling did not require a showing that the movement was unsafe, this holding was limited to an examination of the wording of § 21658(a) to determine the legislative intent.

While Butler held that a person may be convicted for lane straddling without unsafe movement, Colin requires an examination of the totality of the circumstances to determine whether there is probable cause to justify a stop. While Colin does not explicitly overrule Butler because the totality of circumstances may include, in conjunction with lane straddling, other justifications for the stop that do not amount to unsafe driving, the application of Colin requires more than simply crossing a line to effectuate probable cause to justify a stop based on a violation of § 21658(a).

The simple fact is that it would be difficult to find a case, in any situation, more on point then Colin is to these facts. Like the defendant’s vehicle in Colin, the driver’s vehicle drifted over the line bordering the shoulder to the right, then traveled back across the lane, and then traveled over the line to the left. In both cases there were no indications of unsafe, inattentive, or otherwise bad driving, or that any other traffic was affected, and both were stopped for suspicion of a violation of V.C. § 21658(a). The driver’s driving, like that of the defendant in Colin, does not amount to a vehicle code violation because his deviations from the marked lanes satisfy the requirement that a driver drive as “nearly as practical” within a lane, that is, as is reasonably expected of a normal, less than perfect, human driver.

As discussed in Colin, and reflected by numerous decisions across the United States, one does not have to be a lawyer to figure out brief deviations outside the marked lines alone does not amount to criminal activity. As drivers, everyone has momentary lapses of attention on the roadway where our vehicles may cross lane lines, particularly where no one is driving next to us. We may be distracted by changing the radio station, or simply lost in thought after a long day. The legislature, by writing the statute requiring one to drive “as nearly as practical” within the lane recognizes this as normal human behavior, and not criminal activity. Simply crossing a lane line twice, with no indication of any other bad driving, does not amount to a violation of V.C. § 21658 because that is not a traffic infraction, that is quite simply, DRIVING.

Officer did not have probable cause to stop the driver for a violation of V.C. § 21658(a) or any other possible criminal act. Because of the illegality of the stop, the suspension of the driver’s license should be set aside.

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