Friday, August 03, 2012

Touching the line isn't crossing the line

Wm. Rex Lorson won in State v. Gross, No. 107,320 (Kan. App. July 27, 2012)(unpublished), affirming Judge Hellmer's suppression order in a Saline County DUI prosecution.  Judge Hellmer suppressed evidence based on his finding of lack of reasonable suspicion for a car stop.  The state argued that the officer had reasonable suspicion that Mr. Gross failed to maintain a single lane.  The COA applied State v. Marx (blogged about here) to uphold the district court's finding that touching the fog line on a couple of occassions while going around bends did not support reasonable suspicion of failure to maintain a single lane.  The COA also agreed that touching the center line once did not support reasonable suspicion of failure to remain on the right half of the roadway.
This court has held that crossing a lane marker once constitutes reasonable suspicion of a single lane violation. This court has also held that crossing the fog line on two occasions amounts to reasonable suspicion.  And so does repeatedly touching the fog line and crossing it four to six times.  Here, Gross' truck touched the fog line twice. Deputy Anderson did not have reasonable suspicion that Gross committed a single lane violation because his truck never crossed the fog line.
This court has held that crossing the centerline once constitutes reasonable suspicion of a right of center violation.  Here, Gross' truck touched the centerline once. Deputy Anderson did not have reasonable suspicion that Gross committed a right of center violation because his truck never crossed the centerline.
Furthermore, the district court's factual finding that Gross did not otherwise drive erratically is also supported by substantial competent evidence—again, the video. This forecloses any argument that Deputy Anderson had reasonable suspicion of DUI.
 
Because the officer did not have reasonable suspicion to stop the car, the COA upheld Judge Helmer's suppression order.

[Update: the state did not file a PR and the mandate issued on August 30, 2012.]

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