Weaving and Reasonable Suspicion

Drunk drivers have difficulty driving in a straight line. Therefore, police officers frequently stop drivers who are weaving, suspecting them of impaired driving. Until very recently, it seemed that the law was settled that weaving alone could not support a DWI stop. Rather, “weaving plus,” or weaving combined with some other circumstance suggesting impairment, was required. State v. Fields, 195 N.C. App. 740 (2009) (holding that an officer did not have reasonable suspicion that a driver was impaired where the driver “swerve[d] to the white line on the right side of the traffic lane” three times over a mile and a half, but stating that weaving, “coupled with additional . . . facts,” may provide reasonable suspicion; cases cited by the court suggested that other facts could include things such as driving “significantly below the speed limit;” driving at an unusually late hour; and driving in the proximity of drinking establishments). See also generally State v. Peele, 196 N.C. App. 668 (2009) (no reasonable suspicion of DWI where an officer received an anonymous tip that defendant was “possibl[y]” driving while impaired, then saw the defendant “weave within his lane once”); State v. Simmons, 205 N.C. App. 509 (2010) (stop was supported by reasonable suspicion where the defendant “was not only weaving within his lane, but was also weaving across and outside the lanes of travel, and at one point actually ran off the road”); State v. Brown, 2010 WL 3860440 (N.C. Ct. App. Oct. 5, 2010) (unpublished) (stop was supported by reasonable suspicion where the defendant was weaving within her lane and traveling 10 m.p.h. under the speed limit at 1:40 a.m.).

Two recent cases have made me alter my mental shorthand from “weaving plus” to “weaving plus or lots of weaving.” First, back in March, came State v. Fields, __ N.C. App. __, 723 S.E.2d 777 (2012) (Geer, J.). (The defendant in this case, as far as I know, is no relation to the defendant in the Fields case cited above; I’ll refer to this case as Fields (2012), and to the former case as Fields (2009).) In Fields (2012), an officer followed the defendant for three quarters of a mile and saw him “weaving in his own lane . . . sufficiently frequent[ly] and erratic[ly] to prompt evasive maneuvers from other drivers.” The officer stopped the defendant on suspicion of DWI. The defendant was indeed impaired, and was charged with habitual DWI. The defendant moved to suppress, arguing that weaving within a single lane doesn’t provide reasonable suspicion to support a stop. The trial court denied the motion, and after the defendant was convicted, the court of appeals affirmed. Distinguishing Fields (2009), the court stated that the defendant in this case did not merely weave once or twice within his lane, but rather drove like a “ball bouncing in a small room.” The court really didn’t dwell on any factors other than the defendant’s weaving. It was somewhat late at night – 10:30 – but the court didn’t cite that as a justification for the stop, nor did it note whether there were drinking establishments nearby, etc.

Then, last week, the state supreme court decided State v. Otto, __ N.C. __ (2012) (Hudson, J.). The facts of Otto are as follows: An officer conducted a DWI stop at 11 p.m. on a Friday night after he noticed the defendant weaving from the center line to the fog line. The officer followed the defendant’s vehicle for approximately three quarters of a mile and did not see the vehicle leave the roadway or cross the center line, nor did the defendant commit any other traffic violations. When the officer initially observed the defendant, she was approximately one-half mile from the Rock Springs Equestrian Club, and was coming from the direction of the club. The officer was aware that a banquet was being held at the club that evening. Although the officer did not know if alcohol would be served at the club that evening, the officer had heard that alcohol was served at other club events. It turned out that the defendant was impaired. The case ended up in superior court, where the trial judge ruled that the officer had a reasonable, articulable suspicion for stopping the defendant’s vehicle. The defendant then pled guilty and appealed. A divided court of appeals ruled in her favor, with the majority stating: “Without any additional circumstances giving rise to a reasonable suspicion that criminal activity is afoot, stopping a vehicle for weaving is unreasonable.” The supreme court unanimously reversed, finding the stop justified under all the circumstances. The court briefly noted that the stop took place at 11 p.m. on a Friday, but seemed to place greater emphasis on the “constant and continual” nature of the weaving in this case, distinguishing Fields (2009) on that basis.

To sum up, in Otto there was a “plus” – the fact that the stop took place on a Friday night at 11 p.m. – but the “plus” played second fiddle to the nature of the weaving. And in Fields (2012), there really wasn’t a “plus” at all, just an officer’s vivid description of extensive weaving. So, while “weaving plus or lots of weaving” is a little more cumbersome than “weaving plus,” I think it’s closer to the law. If you’ve got a better synopsis or mnemonic device, please share it.