Yesterday, the North Carolina Court of Appeals issued an opinion in the case State v. Wainwright, which involved the issue of using an observation of weaving as reasonable suspicion for a traffic stop in a DWI case. The court held that the officer who made the stop had reasonable suspicion to stop the defendant after the defendant swerved to the right because of the heavy pedestrian traffic in the area, as well as the bars in the vicinity and the unusual hour of the stop.
In Wainwright, the officer observed the defendant driving toward downtown Greenville at about 2:30 a.m. early on a Sunday morning. The defendant swerved to the right, crossed the white line on the outside of the road, and almost hit the curb. As the officer continued his observation of the defendant, he did not notice anything else unusual.
There were many bars in the area in which the defendant was driving, and they had just stopped serving alcohol about half an hour before the officer observed the defendant swerve while driving. In addition, the pedestrian traffic in the area was particularly heavy that night. The university students had returned to campus but had not started fall classes yet. The area also contained lots of student housing, and the students were walking home from the bars. Some of the students were walking in the bike lane, and some were walking on the street.
The officer testified that he was concerned that the defendant would swerve again and injure one of the many pedestrians, so the officer pulled behind the defendant’s car and initiated a traffic stop. The defendant was subsequently arrested for impaired driving. When he submitted to a breath test, it was determined that his blood alcohol content was 0.11.
The defendant was convicted of impaired driving, and two grossly aggravating factors were determined: the defendant had a prior dwi conviction within seven years and the defendant was driving with a revoked license. As a result, the defendant was sentenced to a Level 1 punishment, which involved 18 months of probation and 30 days of active prison time.
On appeal, the defendant argued that the officer did not have reasonable suspicion to initiate a traffic stop. The court of appeals began its analysis by reviewing the requirement of reasonable suspicion for a traffic stop. Reasonable suspicion is “based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training.” The standard of reasonable suspicion is less demanding “than probable cause and requires a showing considerably less than preponderance of the evidence.” A determination of reasonable suspicion requires a court to look at “the totality of the circumstances – the whole picture.”
In Wainwright, the officer stopped the defendant based on one instance of swerving or weaving, which involved the defendant’s car swerving right, crossing the outside white line, and almost hitting the curb. Previous court of appeals cases have held that “weaving within the lane of travel, standing alone, is insufficient to justify a traffic stop without the existence of additional facts to indicate the driver is impaired.”
Instead, the observation of “weaving can contribute to a reasonable suspicion of driving while impaired,” but it must be “coupled with additional specific articulable facts, which also indicated that the defendant was driving while impaired.” Examples of these additional facts include driving significantly below the speed limit, driving off the road, and exceeding the speed limit. [Other additional factors include driving at an unusual hour and driving in the vicinity of establishments that serve alcohol, but the court saved the analysis of these factors for a later discussion.]
The court then noted that additional factors are not required for reasonable suspicion if the weaving “is particularly erratic and dangerous to other drivers.” For example, in the 2012 case, State v. Fields, the court of appeals held that a driver’s weaving provided reasonable suspicion when the weaving was constant and continuous over the course of ¾ of a mile and was so erratic that drivers going the opposite direction pulled over to the side of the road in response to the defendant’s driving. Using this rationale, the Wainwright court concluded that “[u]nder the totality of the circumstances, defendant’s driving was dangerous to others due to the pedestrian traffic on the sidewalks and street.”
Although the court concluded that the defendant’s weaving was dangerous to others, it did not conclude that the weaving alone was sufficient to establish reasonable suspicion in this case. The court then went on to examine the time and place additional factors. As mentioned above, two factors that a court can consider in addition to weaving when determining whether reasonable suspicion exists are driving at an unusual hour and driving in the vicinity of establishments that serve alcohol.
The court determined that both of these additional factors were present and then concluded that when looking at the “totality of the circumstances,” “[t]he swerving nature of defendant’s driving outside the lane of travel and nearly striking the curb, the pedestrian traffic along the sidewalks and in the roadway, the unusual hour defendant was driving, and his proximity to bars and nightclubs, supports the trial court’s conclusion that [the officer] had reasonable suspicion to believe defendant was driving while impaired.”
If you have been charged with impaired driving, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.