State v. Doyon

State v. Doyon (99-299); 171 Vt. 546; 758 A.2d 816 

[Filed 21-Aug-2000]

 
                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-299

                             JANUARY TERM, 2000


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 3, Caledonia Circuit
Paul L. Doyon	                       }
                                       }	DOCKET NO. 29-6-99Cacs

                                                Trial Judge:  Alan W. Cook


             In the above-entitled cause, the Clerk will enter:


       The State appeals the district court's determination that there was no
  justifiable basis for the  stop that led to defendant's arrest for driving
  while intoxicated.  We reverse.

       At approximately two-thirty in the morning of May 22, 1999, a state
  trooper observed  defendant operating a vehicle close to or on the
  centerline of a paved highway.  The officer then  observed defendant's
  vehicle swerve to the right and then eventually turn into a driveway.  The 
  officer followed defendant after he pulled back onto the highway and drove
  first onto one dirt road,  and then another.  Defendant drove down the
  center of these dirt roads.  At some point, the officer  stopped defendant
  for the prior erratic operation and for failing to drive on the right. 
  Eventually,  defendant was processed and charged with driving while
  intoxicated, third offense.

       Following a hearing, the district court granted defendant's motion to
  suppress, ruling that the  officer had no reasonable and articulable basis
  for stopping defendant.  The court noted that it is the  custom of many
  Vermonters to drive in the center of dirt roads until and unless they see
  oncoming  traffic.  On appeal, the State argues that the officer's stop was
  justified based on his observation of  defendant violating state law
  requiring motorists to drive on the right side of roads.  See 23 V.S.A. § 
  1031 (driving to right).

       Except for circumstances that did not exist in this case, § 1031(a)
  requires persons to drive on  the right half of roadways of sufficient
  width.  The undisputed testimony of the officer was that  defendant was
  driving left of the center of the road, and that although the road was wide
  enough for  two cars to pass, it was questionable whether an oncoming car
  could have passed by defendant  because of his position in the center of
  the road.  Given defendant's failure to stay to the right, as  required by
  statute, the officer was justified in stopping him.  See State v. Welch,
  162 Vt. 635, 636,  650 A.2d 516, 517 (1994) (mem.) (reasonable and
  articulable suspicion of wrongdoing is necessary  for police officer to
  stop motor vehicle being operated on highway).  

 

  Notwithstanding defendant's argument to the contrary, State v. Kirby, 143
  Vt. 369, 465 A.2d 1369  (1983) is on point.  In that case, just as here,
  the evidence demonstrated that the unpaved road was  wide enough for two
  cars to pass in opposite directions, but that the defendant had positioned
  his car  such that safe passage was compromised.  See id. at 371, 465 A.2d 
  at 1370.


       Reversed.


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                                 Dissenting


       JOHNSON, J., dissenting.  Both the arresting officer and the trial
  judge repeatedly referred to  this case as a close case, a judgment call. 
  In such a close case, I think we must defer to the decision  made by the
  trial court.  The court made a discretionary decision, crediting the
  evidence that the  officer observed very borderline behavior, behavior not
  clearly unlawful, and that decision should be  upheld.

       A judge's knowledge of background facts and community norms may
  legitimately be used in  evaluating what is reasonable or unreasonable in a
  given situation.  See Ornelas v. United States, 517 U.S. 690, 699 (1996).
  It is true, as the court observed, that Vermonters commonly drive closer to
  the  middle of dirt roads than they do on paved roads; this is exactly the
  sort of background information  that may inform a court's decision.  
  Although the court left it unstated, there are good reasons why  this
  custom exists.  Vermont's dirt roads lack shoulders and abound in ditches. 
  In order to avoid any  mishaps with the edge of the road, either in the
  trees or the ditches, Vermonters commonly edge  toward the center of dirt
  roads and then move right when another car approaches.  This kind of 
  background information is plainly part of the "totality of the
  circumstances," State v. Crandall, 162  Vt. 66, 70, 644 A.2d 320, 323
  (1994), that a police officer's reasonable suspicion must consider.   And
  where the trial court evaluating that suspicion, cognizant of the realities
  of Vermont's dirt roads,  concluded that the officer's suspicion was not
  reasonable, we ought not to overturn that  determination.  I am authorized
  to state that Justice Skoglund joins in this dissent.


                                      

      
  Dissenting:   	                BY THE COURT:

  ____________________________________    ____________________________________
  Denise R. Johnson, Associate Justice    Jeffrey L. Amestoy, Chief Justice

  ______________________________________  ____________________________________
  Marilyn S. Skoglund, Associate Justice  John A. Dooley, Associate Justice

                                          ____________________________________
                                          James L. Morse, Associate Justice