Friday, November 17, 2006

That's impaired?

Pat Dunn won in State v. Hess, No. 94,318 (Kan. App. Nov. 17, 2006), reversing a Sedgwick County drug conviction. A deputy pulled over a car because it was "hugging the line," which the deputy thought showed the driver was "concentrating harder" because of impairment. Although recognizing other cases that might consider hugging the line--along with other fact--sufficient to justify a stop, the COA held that the single observation did not:
We do not know whether Hess, when unimpaired, normally drives in a straight line adjacent to the lane divider. . . . . Thus, although the deputy articulated a suspicion that Hess was committing the crime of operating a vehicle while impaired, that suspicion was not objectively reasonable and particularized under the facts presented. It was an unparticularized hunch.
The COA also hinted that, even if the stop was permissible as a safety stop, the deputies probably exceeded the scope of a safety stop, citing State v. Gonzales, which I previously blogged about here.

[Update: the state did not file a petition for review and the mandate issued on December 21, 2006].

[Further update: the KSC granted the motion to publish this decision on February 13, 2007. The published opinion is linked above.]

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