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Washington Court Finds Traffic Stop Constitutional When Defendant Crossed Fog Line

Individuals are protected from unreasonable seizures by both the U.S. and Washington Constitutions.  Warrantless seizures are unreasonable unless an exception applies, and it is the state that must establish that an exception exists.  A traffic stop is considered a seizure.  For a warrantless traffic stop to be constitutional, there must be a reasonable articulable suspicion of criminal activity or a traffic infraction.  The scope of the stop must be reasonably limited.

roadA Washington appeals court recently considered whether the state had a reasonable articulable suspicion when it was undisputed that the defendant had crossed the fog line for about 200 feet.  A state patrol trooper was driving behind the defendant and observed her drive two wheels of her vehicle over the fog line for about 200 feet.  The trooper pulled the defendant over.  She submitted to sobriety tests, and the trooper arrested her for driving under the influence after observing clues of intoxication.

The defendant moved to suppress the evidence from the stop, and she moved for dismissal, arguing that the trooper did not have a reasonable suspicion to justify the stop.  The state argued that the defendant committed an infraction when she drove on the shoulder.

The trial court found that the state had not established a reasonable suspicion.  The court found, based on the trooper’s testimony and dash camera footage, that the state only showed that the defendant had crossed the fog line for 200 feet and only when the traffic in front of and beside her had come to a stop.  The court granted both motions, suppressing the evidence and dismissing the case.

The state appealed to the superior court, and the case was reversed and remanded based on a finding that RCW 46.61.670 rather than RCW 46.61.140 controlled.  The defendant then sought discretionary review from the court of appeals.

The defendant argued that RCW 46.61.140, “Driving on roadways laned for traffic,” applied.  The appeals court found, however, that RCW 46.61.670, “Driving with wheels off roadway,” applied, since it was undisputed that the defendant had driven with her wheels over the fog line and therefore off the roadway.

The appeals court looked at the language of RCW 41.61.670, which states “it shall be unlawful to operate or drive any vehicle … on a public highway with one wheel or all of the wheels off the roadway…”  The statutory definition of “roadway” specifically excludes the shoulder. RCW 46.04.500.  The appeals court found the trooper had a reasonable suspicion to believe the defendant committed a traffic infraction, and the stop was therefore lawful.

The appeals court noted that the statute is straightforward and that it is a traffic infraction to drive over the fog line unless there is an applicable exception as set forth in the statute.

The appeals court then looked at the language of RCW 46.61.140 and found that it addressed changing lanes safely and the use of the centerline.  That statute requires a vehicle to be driven “as nearly as practicable entirely within a single lane…”  The appeals court declined to read this language into RCW 46.61.670.

The appeals court rejected the defendant’s argument that an absurdity would result if even minor deviations across the fog line could result in warrantless seizures, while equally minor deviations across other boundary lines would not.  The appeals court noted its role was to interpret the statutory language, and it was up to the legislature to address any concerns about contradictory results from similar conduct and the public policy issues raised.

The appeals court affirmed the decision and remanded.

The standard of a reasonable articulable suspicion of a traffic infraction is a low burden on the state, especially when any deviation across the fog line could be considered an infraction.  The Washington DUI attorneys at Blair & Kim, PLLC, have a thorough understanding of both traffic law and criminal law.  If you are facing charges following a traffic stop, call us at (206) 622-6562 to discuss your case.

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