DUI Appeal - Fog line 3 times, Stop Invalid

In State of Washington v. Archuleta, --- P.3d ----, 2011 WL 910023 (Wash.App. Div. 1) the defendant, a juvenile, unsuccessfully challenged the stop of his vehicle in the trial court. The police report stated:

On 091108, at about 0101 hours, I observed a blue Oldsmobile driving in the 400 Block of West Valley Highway S in Algona, King County, Washington. I closed distance with the vehicle and was observing its driving as it proceeded north on the roadway. I observed the right tires of the vehicle cross the white “fog line” in its lane of travel. From 1 st Ave N to the 800 block of West Valley Highway, the vehicle's right tires touched or crossed the fog line at least 3 times in a quarter mile. I stopped the vehicle.

The Washington lane usage statute provided:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply:(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

The appeals court found the stop was illegal. Citing to other cases including Prado v. Washington 145 Wn.App. 646, 186 P.3d 1186 (2008) , the appeals court reasoned that the statute did not create a strict liability offense and that the defendant's act of “crossing over a lane once for one second by two tire widths [did] not, without more, constitute a traffic violation justifying a stop by a police officer.” In concluding, the opinion stated:

As Archuleta, argues, however, in holding that the lane travel statute does not establish a strict liability offense, Prado actually follows many other states to establish a totality of the circumstances test, including consideration of whether the driver's actions constituted a danger to others and requiring a more sophisticated analysis than just counting the number of times a driver might touch the lane line. Notably, the out-of-state cases that the Prado court found persuasive included factual scenarios that involved more than one instance of touching or crossing a lane divider line, which were nonetheless still insufficient to justify a stop under statutes similar to ours.FN12

In attempting to meet its burden of justifying a warrantless seizure here, the State established only that Archuleta drove once over the fog line by an unstated margin for an unstated length of time, and then twice more drove so that he touched the line, again for an unstated length of time. There was no evidence that this driving imperiled any other traffic or property on the road or off the road, or that the officer recognized this type of driving as suggesting impairment or inattention on the part of the driver. Nor does the record support such inferences. The very limited evidence presented here established no more than “brief incursions over the lane lines.” As the Prado court found, this does not constitute a violation of the lane travel law.

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