Weaving Plus What?

When defending someone charged with a D.W.I., one of the issues that routinely comes up is whether law enforcement legally pulled the defendant over in the first place.  If the officer did not have the reasonable suspicion necessary to pull the defendant-driver over, then everything that happened after that unauthorized traffic stop will most likely be suppressed, often leading to a dismissal or not guilty for the client.  Officers will often cite weaving as their reason for pulling the vehicle over.  But weaving isn’t necessarily illegal.  There’s no ticket that can be issued for weaving and sober drivers often weave for a number of reasons.  Who hasn’t spent too long looking down at the radio dial before having to weave their vehicle to over-correct?

North Carolina’s courts agree, and have recognized that weaving, by itself, is “conduct falling within the broad range of what can be described as normal driving behavior.” State v. Derbyshire, 745 S.E.2d 886, 892 (N.C. Ct. App. 2013).  This is often referred to as the “weaving plus” doctrine. See, e.g., Jeff Welty, Weaving and Reasonable Suspicion, North Carolina Criminal Law-UNC School of Government Blog (19 June 2012), http://nccriminallaw.sog.unc.edu/?p=3677.  Since drivers weave frequently, an important question during trial often becomes: what constitutes the “plus” necessary to pull a driver over?

The location and time of driving are important in determining whether the officer legally stopped the driver.  While weaving isn’t enough by itself, it can be enough if it is at an odd hour, or in an area near drinking establishments or with a high volume of pedestrians. See State v. Fields, 673 S.E.2d 765 (N.C. Ct. App. 2009); State v. Jacobs, 590 S.E.2d 437 (N.C. Ct. App. 2004); State v. Wainwright, 770 S.E.2d 99 (N.C. Ct. App. 2015).

Other sufficient “plus” factors can be based on the severity or length of the weaving.  For example, three separate weaves within the driver’s own lane are not enough, but constant and continuous weaving over three quarters of a mile might be. Compare Fields, 673 S.E.2d at 768; State v. Otto, 726 S.E.2d 824, 828 (N.C. 2012).  Weaving that is “particularly erratic and dangerous to other drivers” may also be enough to constitute reasonable suspicion warranting a pull-over. See State v. Fields, 723 S.E.2d 777, 779 (N.C. 2012); State v. Simmons, 698 S.E.2d 95, 106 (N.C. Ct. App. 2010).

These “plus” factors can be extremely subjective, so it is important for a defense attorney to explore and develop the facts when cross-examining the officer.  They should establish that there were no other moving violations, and that the defendant’s driving was safe and lawful other than the weaving.  In addition, they should explore how long and for what distance the officer followed the vehicle, whether there were any mechanical problems with the car, what the weather conditions were, and whether the defendant was unfamiliar with the area where they were driving.  The solicitation of facts that can account for the weaving may be the difference in whether or not the stop was legal, and ultimately whether the evidence against the driver will be suppressed, resulting in a dismissal or not guilty.

For more information on reasonable suspicion and the defense of DWI’s and other crimes, contact Parton & Associates, PLLC.

Written by Corey V. Parton. 

Researched & edited by Brittny M. Kaltenbach.