Mar 24, 2017 Virginia DWI defense – Mere brief weaving is not sufficient for a police traffic stop
If a police officer wants to interact face to face with a driver, the officer may simply follow the driver until s/he commits a moving violation, reaches the driver’s destination, or runs out of gas (that is, if the driver does any of those things while still in the police officer’s jurisdiction). That is the sad nature of the Supreme Court’s permitting pretextual stops actually meant to investigate beyond a mere traffic violation. Whren v. U.S., 517 US 806 (1996).
Of course, police do not have all day to discover a moving violation. Unless the officer is going to prevaricate, sometimes the cop can offer no better than weaving within the driver’s lane of travel as the reasonable articulable suspicion for stopping the car. Let us be real: Few roadways are completely straight, and no driver is perfect, thereby making it common for even the best drivers not to remain in a straight-as-an-arrow path, in other words leaving them to weave from time to time.
Consequently, mere momentary, short and limited weaving is not sufficient for a police traffic stop. Moreover, Virginia has not recognized a community caretaking ground to allow a police traffic stop (to assure the welfare of the driver of a car driving less than perfectly). Barrett, 250 Va. 243, 247-48, 462 S.E.2d 109, 112 (1995). The totality of the circumstances must always be considered in determining whether a police officer has reasonable articulable suspicion to stop a vehicle.
Weaving appeals often will apply to DWI cases, seeing that much more is at stake for a DWI conviction than for a mere non-jailable moving violation conviction.
The following Virginia weaving appellate and trial court cases (thank to my colleagues who have discussed these cases over the years) can be helpful for arguing against reasonable articulable suspicion under the Fourth Amendment to stop a car for weaving.
In 2016, the Virginia Court of Appeals provided this overview of the caselaw on weaving stops:
“[T]he Commonwealth also fails to meet its burden to show reasonable suspicion of reckless driving based upon the weaving and the observation that Augustus was ‘almost standing u’” at one point. In most cases, the question of reasonable suspicion based on weaving or unusual behavior arises in the context of suspected impaired driving. See, e.g., Freeman v. Commonwealth, 20 Va.App. 658, 661–62, 460 S.E.2d 261, 262–63 (1995) (reasonable suspicion of impairment when driver drove well below the speed limit, in the center lane on a six-lane highway while cars passed on both sides, and weaved within his lane over the course of a mile). Ongoing weaving within one’s lane can provide reasonable suspicion to justify a stop, see Neal v. Commonwealth, 27 Va.App. 233, 239, 498 S.E.2d 422, 425 (1998) (reasonable suspicion of impairment existed when defendant weaved within the lane between five and ten times over a distance of a half-mile), but the mere fact that a driver weaves, even into another lane, does not necessarily render the stop lawful, see King v. Commonwealth, 1995 WL 3382, at ––––, 1995 Va.App. LEXIS 8, at *2 (Jan. 3, 1995) (no reasonable suspicion of driving under the influence where defendant stopped for two seconds at a yield sign despite no oncoming traffic and momentarily drifted across a lane divider).
“The investigators here witnessed Augustus weaving, without crossing the lane divider, approximately three times over the course of less than two blocks. The weaving frequency is less than that observed in Neal, but more than in King. Only Neal controls; King is, however, persuasive authority. The observed actions, at least in terms of the amount and duration of weaving, here do not equal, let alone exceed, those in Neal. That Augustus was positioned unusually in his vehicle does not alter the outcome. ‘Lawful conduct that the officer may subjectively view as unusual is insufficient to generate a reasonable suspicion that the individual is involved in criminal activity.’ Harris v. Commonwealth, 276 Va. 689, 697, 668 S.E.2d 141, 147 (2008).”
Virginia v. Augustus, 2016 WL 1002095 (Va. App. 2016) (unpublished).
Also worth mentioning is the oft-referenced Virginia v. Webb, 56 Va. Cir. 419 (Danville, 2001) , which apparently is only available online through such legal subscription services as Westlaw, to which I subscribe. Here is Webb‘s key language:
“In the present case, the erratic driving relied upon by the arresting officer to justify the investigatory stop of defendant involved weaving within a single lane. Specifically, the vehicle’s left wheels touched, but did not cross the middle lane divider of a divided highway. The vehicle’s right wheels then touched or ran along, but did not cross, the outside line marking the outside of the lane. Then, the vehicle drifted back to the left such that the left wheels again touched the middle lane divider. Defendant testified that the arresting officer followed his vehicle for as far as 1.5 miles before initiating a stop. However, the arresting officer testified that the weave described above occurred over a distance of about 0.3 to 0.5 mile. Although no testimony was elicited concerning the arresting officer’s training and experience specifically dealing with and/or recognizing impaired or intoxicated drivers, the arresting officer was an experienced patrolman.
“After further consideration of the facts and law, this Court has determined that defendant’s motion to suppress should have been granted. The Court’s reconsidered ruling is based upon a determination that defendant’s vehicle was not observed to be making erratic movements of the type observed by the arresting officer in Neal. 27 Va.App. at 235–36 (“numerous times, would weave to the center of the highway, then back to the right, just constantly moving from side to side in its lane.”) Here, the defendant’s vehicle moved one complete cycle, whereby its wheels touched, but did not cross, the left lane divider, followed by a move to the right, then back to the left. Defendant’s movements appear to be more in the nature of an isolated instance of mild weaving as opposed to constant weaving. Id.”
Webb, 56 Va. Cir. 419.
The foregoing court cases are essential to a Virginia criminal defense / DWI lawyer’s weaving legal research file.