State v. McBroom

• Court: Court of Appeals of Oregon
• Writing for the Court: KISTLER, J.
• Citation: 179 Or. App. 120,39 P.3d 226
• Parties: STATE of Oregon, Respondent, v. David Robert McBROOM, Appellant.
• Decision Date: 23 January 2002

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.

39 P.3d 227

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

39 P.3d 228

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...