People v. Kern

• Decision Date: 16 January 2013
• Docket Number: No. 12010185.,12010185.
• Parties: The PEOPLE of the State of New York v. Barbara KERN, Defendant.
• Court: New York Justice Court

38 Misc.3d 1217
967 N.Y.S.2d 869
2013 N.Y. Slip Op. 50119

The PEOPLE of the State of New York
v.
Barbara KERN, Defendant.

No. 12010185.

Town Court, Town of Sheridan.

Jan. 16, 2013.

Gregory D. Drab, Esq., Assistant District Attorney, Office of the Chautauqua County, District Attorney, Mayville.

John J. Schober, Esq., Schober and Schober, Dunkirk, attorneys for defendant.

DECISION AND ORDER
LYDIA ROMER, J.

We have been asked to determine whether or not driving on or over the “fog-line” in this case against this Defendant gave rise to a violation of Vehicle and Traffic Law Section 1128(a). The Defendant Barbara Kern is asking this Court to invalidate the stop of her vehicle and to suppress all evidence obtained from that stop on the grounds that there was no probable/reasonable cause to believe she had violated the law, specifically, VTL Section 1128(a). A probable cause/reasonable cause Ingles Hearing was held in Sheridan Town Court on December 20, 2012.

This case is not unique, certainly not in the Town of Sheridan where we have reviewed a number of cases concerning the use of VTL Section 1128. In this decision we review recent developments. Some of the cases and rules discussed in this Decision are alleged infractions of subdivision (a) and others, subdivision (d). In this case it was an alleged violation of subdivision (a). What this cases, and the cases discussed below have in common, whether violations of subdivision (a) or (d), is that the action of defendant that caused the law enforcement officer to stop him or her was the crossing of the white solid line on the right side of the roadway, often referred to as the “fog line” without any indication that it was hazardous to do so or that the driving was also erratic so as to raise the suspicion of impairment. These so called “fog line” stops have been the subject of a number of lower court and several Appellate Division decisions and, at least since 2008, there have been developments which are instructive in examining and balancing the Fourth Amendment Constitutional Rights versus the Public Safety issues created by drunken driving. (See e.g. People v. Teall, Defendant No. 11–04897 decided July 25, 2011, City Court, Rochester, NY)

FACTS: Defendant was stopped on January 26, 2012 at approximately 1:26 a.m for an alleged violation of V & T Law Section 1128(a). At a Hearing to determine the validity of the stop and whether or not to suppress evidence obtained, the Trooper testified that he was heading west on Route 20 having turned on to 20 from South Roberts Road in the Town of Sheridan when he saw a lone green Chevy heading east bound on Route 20 not far from South Roberts Road. The Trooper testified that the vehicle was going in the opposite direction at approximately 40 mph when he noticed defendants vehicles tires cross the white fog line. As he turned his vehicle around defendant signaled and then turned onto South Roberts Road Northbound. The Trooper followed defendant on to Roberts Road where he again observed defendants vehicle cross the fog line. He activated his lights and defendant signaled and pulled over just before (as he later learned) her own driveway. The Trooper also stated that he was concerned because he did not know if there were pedestrians on the shoulder or if there were ditches. When asked what about defendant's driving was unsafe, he stated that it was traveling over the fog line.

Upon cross examination it was established that defendant had in fact crossed two times, once on Route 20 and once on Roberts Road and that defendant was not speeding, did not cross the center line or commit any other violations. The road was poorly lit according to the testimony. He also agreed that there was nothing on the side of the road, nothing to hit, no pedestrians or other vehicles and that she pulled over promptly and safely when he directed her to.

ISSUE: Was there probable cause to stop the Defendant Kerns on the night of January 26, 2012 for crossing the single white line on the right side of the road, the so-called “fog line” or was the stop of defendant's vehicle based upon a mistake of law (that crossing the fog line is per se illegal) thus requiring suppression of evidence and dismissal of the charges.

DISCUSSION: Defendant is asking the Court to find that crossing the “fog line” of the roadway is not a per se violation of law. It is her defense that a single white line on the right side of the road is there to assist the driver in seeing the edge of the road in fog or difficult driving conditions and is a “guideline”, not a hazard marking or, more specifically, a traffic control device. In order to be guilty of a violation of V & T 1128, the actions of the Driver must be hazardous to himself or others. If a Driver is observed weaving within the lane or driving erratically, he could be stopped for dangerous driving or driving while impaired and if observed “swerving” back and forth over the fog line, perhaps, with a violation of V & T 1128.

New York State Vehicle and Traffic Law Section 1128 is set forth as follows:

§ 1128. Driving on roadways laned for traffic

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:

(a) 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.

(b) Upon a roadway which is divided into three lanes and provides for two-way movement of traffic a vehicle shall not be driven in the center lane except when overtaking and passing another vehicle traveling in the same direction when such center lane is clear of traffic within a safe distance, or in preparation for making a left turn or where such center lane is at the time allocated exclusively to traffic moving in the same direction that the vehicle is proceeding and such allocation is designated by official traffic-control devices.

(c) When official traffic-control devices direct slow-moving traffic, trucks, buses or specified types of vehicles to use a designated lane or designate those lanes to be used by traffic moving in a particular direction regardless of the center of the roadway, drivers of vehicles shall obey the directions of every such sign, signal or marking.

(d) When official markings are in place indicating those portions of any roadway where crossing such markings would be especially hazardous, no driver of a vehicle proceeding along such highway shall at any time drive across such markings.

In People v. Shulman, 14 Misc.3d 129(A), 2006 N.Y. Slip Op 52508(U), 836 N.Y.S.2d 488 (2006), the case also referenced by the sponsors of the proposed legislation discussed hereinafter, the Appellate Term of the Supreme Court, Second Department, held that two instances of a vehicle crossing “a solid white line which separated his lane of traffic from the paved shoulder of the road” was not a traffic infraction. “The crossing of a solid white line is discouraged, but not prohibited (see 17 NYCRR §§ 261.2, 261.5[c]; § 261.7 [a] )” ( Shulman at 489)

In People v. Fisher, (Justice Court, Town of Wappinger, New York, Dutchess County, Defendant.No. 07110276 decided August 6, 2008), Town Justice Carl Wolfson stated:

“This court is bound by the Decision of the Appellate Term Second Department as reported in People v. Shulman 14 Misc. 3rd, 129a. In that case the trial court found that the defendant violated section 1128d of the Vehicle and Traffic Law in that the defendant while operating a motor vehicle crossed the solid white line which separated his lane from the pavement, “the fog line”. The Appellate Term in...