A good rule of thumb is that most interesting impaired driving appeals come from Pitt County. Whether that is related to ECU’s ranking as a top five “party school,” I don’t know. In any event, today’s batch of opinions from the court of appeals includes another intriguing Pitt County DWI, State v. Osterhoudt.
The facts of the case are pretty simple: the defendant was driving in Greenville when he turned onto Fifth Street heading west. At the relevant intersection, Fifth Street has three lanes, one eastbound and two westbound. One of the westbound lanes is a “regular” lane and one is a left-turn lane. The defendant made a wide turn onto Fifth Street, initially crossing partway into the left-turn lane, which was separated from the regular lane by a double yellow line, before settling into the regular lane. An officer saw the turn and stopped the defendant, who turned out to be impaired. The officer charged the defendant with DWI and driving left of center.
The defendant moved to suppress, arguing that the officer lacked reasonable suspicion of a traffic violation and that the stop was therefore unlawful. He prevailed in district court and in superior court, with the superior court judge finding that the defendant’s wide right turn did not cross the “middle halfway point” of Fifth Street and was “normal” driving that did not affect other traffic.
The state appealed, and after a discussion of some procedural issues concerning the appeal, the court of appeals reversed. It analyzed the issues as follows:
- Although the officer charged the defendant with driving left of center under G.S. 20-146(a), the court of appeals noted that G.S. 20-146(a)(3) creates an exception to the right-of-center rule for any “highway divided into three marked lanes,” such as Fifth Street. Therefore, the defendant was correct in arguing that the officer lacked reasonable suspicion of a left-of-center violation.
- However, G.S. 20-146(d)(1) requires drivers to drive “as nearly as practicable entirely within a single lane,” and G.S. 20-146(d)(3)-(4) require drivers to follow traffic control devices and markings, such as the double yellow line between lanes, which prohibited changing lanes. The defendant didn’t stay in his lane, and he did cross the double yellow line.
- Furthermore, G.S. 20-153(a) provides that “[b]oth the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway.” The defendant’s wide right turn didn’t comply with that mandate.
- Because the officer had an objective justification for the stop, the fact that he actually made the stop for another reason, one that was not legally correct, is irrelevant.
- Whether or not the defendant’s driving was “normal,” in the sense of being common or typical, was not dispositive. Because the officer had facts supporting a reasonable, articulable suspicion of a traffic violation, the stop was justified.
The court’s analysis seems spot-on. In particular, it has to be right that whether a particular method of driving is widespread is irrelevant to whether it can support a stop. Otherwise, no one could ever be stopped for speeding, because speeding is “normal.” Indeed, any law that a sufficient number of people disregarded would be rendered unenforceable. In our system, repeal, rather than noncompliance, is the way to get rid of undesirable regulations.
There is about a snowflakes chance in a blast furnace that they will ever repeal any statute allegedly created to ‘protect’ people, that they frequently abuse and actually use as a taxing statute. Let’s be honest with each other. As I see it the regulations that regulate big business and government are not being enforced as a rule, and all those that regulate people are for revenue purposes.
Osterhoudt was my case. Let me say first that Jeff’s blog post here is very fair and the Court’s opinion was well-structured and thoughtful. My concern in this case was simple: there are intersections where you simply cannot make the turn without hitting the curb or crossing the line, and this intersection downtown Greenville is just such a location (as BOTH trial judges, who have experience with that very intersection, concluded). When I studied the statute, particularly what the Trooper charged my client with (“left of center”), I saw there is clearly different treatment given lines for cars “turning at intersections” vs. cars driving straight down a two, three, or four lane road. It seems logical to me that the Legislature would treat these areas differently, given not only the impossibly tight turns at some intersections, but also the fact that the size of some cars (particularly large trucks) prevents them from physically being able to negotiate even large, wide intersections without crossing lines.
My argument was NOT that even if this was a statutory violation it wouldn’t be lawful to pull him if his driving was still “normal.” Not at all. I stipulated at each stage that if there is any statutory violation, that in itself is reasonable suspicion for a stop. My argument was simple: the statutes provide NO specific language making this a violation, and given no statutory violation, so long as his driving fell within “the broad range of normal driving behavior” then there is no reasonable articulable suspicion for the stop and detention of defendant.
My first problem is the Court now making it a habit to ignore paths of appeal (conceding and ruling now for the third straight time in a DWI case that the State has NO statutory right to appeal, but because they filed a writ of discretionary cert a year after the appeal entries, we’ll just grant that and hear it anyway). My second problem, after seeing that they overruled every single assignment of error raised by the attorney general, is that they found a violation no one argued, and found the violation by looking to a federal DOT manual that defines “traffic control device” as “markings.”
This case now stands for the rule that the protection the 4th amendment gives citizens driving in their cars is mapped strictly by the contours of lines painted by state workers, no matter how arbitrary, no matter the size of your car, and no matter the width of the intersection or road. Thus, my greatest fear that I argued in my brief has come true: many locations are now, simply, detention-traps.
I also found it interesting that there were three separate amicus briefs filed against my position, a fact which I did not realize until the opinion was published, as I had notice only of Mr. Avery’s. I know there are rules about that.
I reiterate that Mr. Welty has done a fine blog post here (as he usually does), and I especially like his recognition that Pitt County has the most interesting DWI cases. That is certainly an inarguable fact.
Matt Davenport
Thanks for the comment. I don’t have the opinion in front of me, but I recall the court quoting the officer’s testimony about there being no obstructions, etc., that would prevent a right turn from taking place close to the curb. If there really was no way to turn right without crossing the double yellow, etc., that certainly seems relevant to the discussion.
My first problem is the Court now making it a habit to ignore paths of appeal (conceding and ruling now for the third straight time in a DWI case that the State has NO statutory right to appeal, but because they filed a writ of discretionary cert a year after the appeal entries, we’ll just grant that and hear it anyway).
This is easy to figure out. The State ‘needs the revenue’ and it has nothing to do with protecting the Motoring Public which IS what the Statute is ‘supposed to be used for’. The State’s agents (LEOs, Prosecutors, and Judiciary) all have a compelling interest to assure that the State’s coffers remain full. It has nothing to do with the Due Process of Law.
Just a couple quick points of clarification.
(1) The Court actually denied cert in an appeal between Fowler/Palmer and Osterhoudt, so it really wasn’t 3 straight appeals where the Court granted cert. See State v. Rackley, 200 N.C. App. 433, 684 S.E.2d 475(2009) (coincidentally, also from Pitt County…).
(2) There were no “assignments of error,” only proposed issues on appeal, and while the Court rejected the issue as to finding of fact #9, it agreed with the other issues as to the conclusions of law.
(3) Also, the State did argue a violation of 20-146(d) and 20-153, with which the Court agreed. The State also cited that DOT Manual re: markings.
(4) There was only 1 amicus brief, jointly signed by the three amici.
“The facts of the case are pretty simple: the defendant was driving in Greenville when he turned onto Fifth Street heading west. At the relevant intersection, Fifth Street has three lanes, one eastbound and two westbound. One of the westbound lanes is a “regular” lane and one is a left-turn lane. The defendant made a wide turn onto Fifth Street, initially crossing partway into the left-turn lane, which was separated from the regular lane by a double yellow line, before settling into the regular lane.”
I was very confused by this summary of events as the road setup did not make sense. I then read the case decision from the court of appeals and realized why it did not make sense. The defendant was actually travelling eastbound and not west. Mr. Welty does a great job and I enjoy reading everything he puts together, but I thought I would point this out as I am sure other readers may be confused unless fixed.
It is not a violation of NCGS 20-146d1 to drive outside of the lines after a driver has first ascertained that such movement can be made with safety.
The Superior Court’s conclusion of law #3 suggests that the wide right turn was made safely and no vehicles were affected.
Based upon the evidence, defendant did not violate GS 20-146d1