State v. McBroom

• Decision Date: 23 January 2002
• Parties: STATE of Oregon, Respondent, v. David Robert McBROOM, Appellant.
• Court: Oregon Court of Appeals

39 P.3d 226

179 Or. App. 120

STATE of Oregon, Respondent, v. David Robert McBROOM, Appellant.

CR9912541; A109543

Court of Appeals of Oregon.

Argued and Submitted July 17, 2001.

Decided January 23, 2002.

John Henry Hingson III, Oregon City, argued the cause and filed the brief for appellant.

David J. Amesbury, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before EDMONDS, Presiding Judge, and KISTLER, Judge, and VAN HOOMISSEN, Senior Judge.

KISTLER, J.

Defendant was charged with driving under the influence of intoxicants. Before trial, he moved to suppress evidence obtained as a result of an allegedly invalid traffic stop. The trial court upheld the validity of the stop, and defendant challenges that ruling on appeal. We affirm.

We state the facts consistently with the trial court's findings. State v. Morton, 151 Or.App. 734, 737, 951 P.2d 179 (1997), rev. den. 327 Or. 521, 971 P.2d 408 (1998). Shortly after midnight, Deputy Sheriff John Zbinden noticed a Corvette driving westbound on Highway 212. Although the car was staying within its lane, it was predominantly to the left of the lane. As the Corvette rounded a large turn in the highway, it failed to "respond appropriately to the curve." Its tires drifted onto the closer of the double yellow dividing lines and stayed on top of that line for 300 feet or more.

Based on what he had seen, Zbinden concluded that defendant had failed to stay within his lane, in violation of ORS 811.370, and stopped him. After speaking with defendant, Zbinden also developed probable cause to believe that defendant was driving under the influence of intoxicants (DUII) and arrested him for that crime.

Before trial on the DUII charge, defendant moved to suppress evidence that Zbinden had obtained as a result of the traffic stop. He argued that Zbinden lacked probable cause to believe that he had violated ORS 811.370. Defendant raised two related but separate arguments in support of his motion. He argued that he had stayed within his lane, as ORS 811.370(1)(a) requires, because he had not crossed over the center line. Alternatively, he argued that, even if he had failed to stay within his lane in violation of ORS 811.370(1)(a), ORS 811.370(1)(b) permitted him to move outside his lane as long as he did so safely. Defendant reasoned that nothing the officer had observed could reasonably have caused him to conclude that defendant's actions were unsafe. The court disagreed and denied defendant's motion. The jury found that defendant was guilty of driving under the influence of intoxicants. On appeal, defendant argues that the court erred in denying his motion to suppress. He raises the same arguments on appeal that he raised below.

Oregon statutes require probable cause to stop a person for a traffic infraction. State v. Matthews, 320 Or. 398, 402, 884 P.2d 1224 (1994). Probable cause has both a subjective and objective component. State v. Owens, 302 Or. 196, 204, 729 P.2d 524 (1986); see Matthews, 320 Or. at 403 n. 3,

884 P.2d 1224 (applying the constitutional test to determine whether the statutory probable cause standard had been satisfied). In this case, there is no dispute that Zbinden subjectively believed that defendant had violated ORS 811.370. The only question is whether the objective component of that test was satisfied—whether a reasonable person could conclude on these facts that it was more likely than not that defendant had violated ORS 811.370.¹

As noted, defendant advances two arguments on that point. He argues that ORS 811.370(1)(a) does not prohibit driving on the center line and that, even if it does, ORS 811.370(1)(b) permits driving outside one's lane if it is safe to do so. Defendant argues that, because there was no evidence that his actions posed any safety concerns, he did not violate the statute. A fortiori, the officer lacked probable cause to believe that he did. Because defendant's arguments turn on what ORS 811.370 prohibits, we begin with the statute's text. It provides, in part:

"(1) A person commits the offense of failure to drive within a lane if the person is operating a vehicle upon a roadway that is divided into two or more clearly marked lanes for traffic and the driver does not:

"(a) Operate the vehicle as nearly as practicable entirely within a single lane; and

"(b) Refrain from moving from that lane until the driver has first made certain that the movement can be made with safety."

Defendant argues initially that he did not violate subsection (a) of the statute. He acknowledges that his tires were on the double yellow line, but he argues that, as long as he did not cross that line, he stayed "within a single lane," as the statute requires. Defendant reasons: "As in tennis, `If it hits the line, it's in.'" The state responds that, if defendant's interpretation were correct, ORS 811.370(1)(a) would authorize two cars traveling in opposite directions on a two-lane road to both drive on the center line.

The statute's text and context lead us to conclude that the state's interpretation of subsection (1)(a) is correct. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 611-12, 859 P.2d 1143 (1993)

. Subsection (1) of the statute provides that it applies to roadways that are "divided into two or more clearly marked lanes for traffic." Subsection (1)(a) requires that drivers operate their vehicles "as nearly as practicable entirely within a single lane." Read together, those two subsections make clear that the phrase "within a single lane" does not mean "on" the lines that mark or divide the lanes. Rather, the statute requires that drivers stay "within" the lines that mark the lanes. The statute's text demonstrates that the legislature did not intend to permit opposing motorists to vie for control of the center dividing line.²

To be sure, the statutory requirement that a driver stay "entirely within a single lane" is not absolute. The legislature has modified that requirement by adding the phrase "as nearly as practicable." Practicable means "possible to practice or perform," "capable of being put into practice, done or accomplished" or "feasible." Frasier v. DMV, 172 Or.App. 215, 220, 17 P.3d 582 (2001). What is practicable or feasible will vary with the circumstances of each case. See id. There is nothing in this record, however, to suggest that defendant failed to stay within his lane because he was responding to an apparent hazard or because he had some other valid reason for leaving his lane. See id. Rather, defendant drove for more than 300 feet on the center line for no apparent reason. Given those facts, the officer reasonably believed that defendant had failed to stay "within [his] lane" in violation of subsection (a) of the statute.³

Defendant advances an alternative argument. He argues that, even if he failed to stay "within [his] lane," as subsection (a) requires, he did not violate ORS 811.370 unless he also failed to comply with subsection (b), which requires that a driver "[r]efrain from moving from [his or her] lane until the driver has first made certain that the movement can be made with safety." Defendant argues that subsections (a) and (b) are two elements of a single offense; both must be proven to establish the offense. He also argues that, as a factual matter, "[t]here is no evidence that the movement (even if driving on a yellow line is a violation of the first element of the statute) made was made without regard to whether it could be made `with safety.'"

We agree with defendant that subsections (a) and (b) should be read together. See Frasier, 172 Or.App. at 220,

17 P.3d 582 (reading those two subsections together). We disagree, however, that subsection (b) permits a driver to stray from his or her lane (or straddle two lanes) as long as he or she can do so safely. Subsection (b) is more limited in its scope. It specifies what a person must do before he or she moves from one lane to another. It provides that a driver must "[r]efrain from moving from [his or her] lane until the driver has first made certain that the movement can be made with safety." Subsection (a) thus states the general rule—a driver should operate his or her vehicle "as nearly as practicable entirely within a single lane." Subsection (b) states when a driver may depart from that rule. By its plain language, however, subsection (b) does not excuse drivers from staying within their lanes unless (1) they are moving from one lane to another and (2) they first make certain that they can do so safely.⁴

In this case, defendant does not claim that he was moving from one lane to another. He was not attempting to cross the double yellow line to pass a car ahead of him. Not only was there no car in front of defendant, but passing on a double yellow line would have constituted a different traffic offense. See ORS 811.420 (making it an offense to pass on the left where prohibited); ORS 810.120(2)(b) (double yellow lines mark a no-passing zone). In any event, the question on appeal is whether the officer had probable cause to stop defendant for a traffic infraction, and the officer reasonably could have concluded that defendant was not moving from one lane to another when he failed to stay within his lane. Because the officer had probable cause to believe that defendant had violated ORS 811.370, the trial court correctly denied defendan...