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Weaving alone: Can that justify a stop?

There are generally three parts to a DWI case. Broadly speaking.

  1. Why was the vehicle stopped?
  2. Why was the person arrested?
  3. How was the chemical analysis performed?

While some DWI cases will deviate from this formula, most lawyers will evaluate your case along these lines because… that’s how most cops perform a DWI investigation. Even NHTSA (the federal agency responsible for highway safety) has established the DWI or DUI investigation as a three-stage process. “Vehicle in motion,” “Personal contact,” “Decision to arrest.”

In North Carolina, we’ve got a Supreme Court that has established a fairly low standard for probable cause. While one would like to think that the police have to amass a considerable amount of information before deciding to take a human being into physical custody, in North Carolina the Supreme Court has basically said the police need a few facts – faulty driving and an admission of drinking – to justify arrest. As the French say, “C’est la vie.”

But certain fact situations do not justify arrest.

An even lower standard is the standard of proof required to justify a vehicle stop. That standard is called “reasonable suspicion” or “reasonable articulable suspicion” and it is used by courts when they review whether a police officer had sufficient facts to warrant a non-consensual stop of the vehicle.

First, the police can stop a vehicle if they observe an outright violation of North Carolina traffic or criminal law. For instance, if the car displays an expired registration sticker, or the car has some other defect that violates NC traffic law, then a police officer can stop the vehicle to issue a ticket. If, during the course of the stop, the police officer notices that the person has been drinking, then the officer can proceed with an arrest for a DWI or drunk driving charge.

But is weaving enough? Not in North Carolina.

In State v. Fields, the North Carolina Court of Appeals held that:

The requisite degree of suspicion must be high enough “to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.” State v. Murray, ___ N.C.App. ___, ___, 666 S.E.2d 205, 208 (2008). A police officer must develop more than an “unparticularized 768*768 suspicion or hunch” before he or she is justified in conducting an investigatory stop. See id. (holding that the police officer lacked reasonable suspicion when he stopped a vehicle to find out why it was traveling in an area with a history of break-ins).

We have previously held that weaving can contribute to a reasonable suspicion of driving while impaired. However, in each instance, the defendant’s weaving was coupled with additional specific articulable facts, which also indicated that the defendant was driving while impaired.See, e.g., State v. Aubin, 100 N.C.App. 628, 397 S.E.2d 653 (1990) (weaving within lane, plus driving only forty-five miles per hour on the interstate), appeal dismissed, disc. review denied,328 N.C. 334, 402 S.E.2d 433, cert. denied, 502 U.S. 842, 112 S.Ct. 134, 116 L.Ed.2d 101 (1991); State v. Jones, 96 N.C.App. 389, 386 S.E.2d 217 (1989) (weaving towards both sides of the lane, plus driving twenty miles per hour below the speed limit), appeal dismissed, disc. review denied, 326 N.C. 366, 389 S.E.2d 809 (1990); State v. Adkerson, 90 N.C.App. 333, 368 S.E.2d 434 (1988) (weaving within lane five to six times, plus driving off the road); State v. Thompson, 154 N.C.App. 194, 571 S.E.2d 673 (2002) (weaving within lane, plus exceeding the speed limit).



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