Julie Elizabeth Coyne, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-888

Julie Elizabeth Coyne, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed March 2, 2004

Affirmed

Forsberg, Judge*

Wright County District Court

File No. C9-03-841

James L. Berg, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN  55318 (for appellant)

Mike Hatch, Attorney General, Willow Najjar, Jeffrey F. Lebowski, Assistant Attorneys General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134 (for respondent)

            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            Appellant challenges the district court order sustaining the revocation of her driver's license under the implied consent law.  She contends that the stop was improper because the officer's initial observations did not provide a basis for a stop and because the officer caused her improper driving conduct thereafter by following her vehicle too closely.  Because appellant's driving conduct provided the officer with reasonable and articulable suspicion of wrongdoing to support the stop, and because the district court's finding that the officer did not cause appellant's improper driving conduct was not clearly erroneous, we affirm.

FACTS

            On February 16, 2003, while Deputy Keith Stuart was on routine patrol, he noticed that appellant's vehicle was slowly weaving within its lane.  He followed her vehicle for several miles, continuing to observe weaving.  He then observed her vehicle crossing slowly over the fog line and back again several times.

            The officer stopped appellant's vehicle, observed indicia of intoxication, and arrested her for DWI.  She failed a breath test, leading to the revocation of her driver's license under the implied-consent law.  She petitioned for review, and the district court sustained the revocation.  This appeal followed.

D E C I S I O N

            A district court's findings of fact will not be reversed unless clearly erroneous.  Jasper v. Comm'r of Pub. Safety, 642 N.W.2d 435, 440 (Minn. 2002).  Determinations of law will be reviewed under a de novo standard.  Berge v. Comm'r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).

            An officer who makes a traffic stop must have a "particularized and objective basis for suspecting the particular persons stopped of criminal activity."  Id. (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 694-95 (1981)) (alteration in original).  The stop may be based on the suspect's violation of traffic laws.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).  Observations of erratic driving, including weaving within the lane of traffic, will also support an investigatory stop.  State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983).

            Appellant first contends that the officer's observation of the slow weaving of her vehicle within the lane of traffic was insufficient for a stop, citing Warrick v. Comm'r of Pub. Safety, 374 N.W.2d 585 (Minn. App. 1985).  In Warrick, this court affirmed the district court ruling that on the undisputed facts, in light of wind and the impaired visibility on the road, the "subtle" weaving of the driver and speed changes, primarily between 40 and 45 miles per hour, did not warrant the intrusion of a brief, investigatory stop.  Id. at 586.  Warrick is distinguishable.  Here, the weather was clear and appellant's erratic driving behavior continued for several miles.

            Next, appellant contends that the officer followed her vehicle so closely that he caused her to drive toward and cross over the fog line.  Citing State v. Brechler, 412 N.W.2d 367, 369 (Minn. App. 1987), she contends that the stop was illegal because the officer's actions caused her improper driving conduct.  In Brechler, this court held that the officers, by tailgating the suspect vehicle, "engendered a stop that was the product of whim and caprice."  Id. at 369.  Here, the district court specifically found that the officer "did not create or engender driving behavior on the part" of appellant.  This finding is supported by the evidence and is not clearly erroneous.

            In conclusion, the officer's observations of appellant's vehicle weaving within the lane over a distance of several miles and crossing over the fog line several times provided reasonable and articulable suspicion to stop her vehicle.  The district court correctly ruled that the stop was lawful.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.