The Massachusetts Supreme Judicial Court will review a motion to suppress that was allowed out of the Eastern Hampshire District Court where the judge found that a single crossing of the fog line for 2 to 3 seconds did not provide reasonable suspicion for a traffic stop and was not a violation of Massachusetts General Laws Chapter 89 Section 4A.  The case is Commonwealth v. Zachariah Larose.

The Massachusetts Lane Roadway statute provides as follows:

When any way has been divided into lanes, the driver of the vehicle shall so drive that the vehicle be entirely within a single lane, and shall not move from the lane which he is driving until he has first ascertained if such movement can be made with safety.

In the case, there was a cruiser camera of the alleged traffic stop showing that the defendant went over the fog line for 2 to 3 seconds and came back into his lane.

The defense made two argument that the plain language of the statute did not include the fog line as a violation of the marked lane statute and even if it did, the crossing must be done unsafely to violate the statute.

Is a Fog Line a Lane within the meaning of Section 4A?  

The defense argued that the legislature used the words lanes and that lane does not include the fog line.  The defense argued that the court has to interpret the plain meaningful of the statute.  If the legislature intended to include the fog line, the legislature would have indicated that with particularity.  Since the fog line was not included in the statute, the Commonwealth did not establish reasonable suspicion for a traffic infraction.

The defense argued that since the legislature stated that when any way is divided into lanes, it did not apply to all roadways or road markings.  The defense relied on an opinion from a Superior Court judge who found that the white line served not to divide the lanes, but to alert drivers to the edge of travel.  While I agree with the defense argument that the statute does not specify that a fog line is included as a lane, I think the second argument is stronger that the movement into the lane must be done unsafely.

Does a Lane Roadway Violation require evidence of unsafe lane change?  

The defendant next argued that even if a lane roadway violation includes the fog line, the Commonwealth still needs to show that the fog lane violation was done unsafely.

The defense argued that a fair reading of Section 4A indicates that a driver does not violate the statute simply by crossing out of his lane, but must do so in an unsafe manner.  The statute allows the driver to move from one lane to another in which he is driving, as long as the movement can be done safely.

The defense found that the court has previously held that the purpose of the statute is to require drivers to use care when changing lanes.  The defense cited many other State court decision requiring an element of unsafe movement to establish a violation of Section 4A.

I would suspect that the court will interpret the statute to require evidence of unsafe movement to establish a violation of Section 4A.  This case is the ideal case for this issue since the driving fraction was captured on cruiser camera.  Most police departments do not have cruiser camera.  I would expect that the court to limit its decision, finding that because this case shows no danger to other drivers, no other infractions that a 2 second crossing into he fog line did not constitute a marked lane violation.

Motions to Suppress the Stop in OUI cases

It is difficult to win a motion to suppress on the argument that the officer did not have reasonable suspicion for the stop.  It does not take much to establish a traffic infraction.  Recently, I had a case where the judge found not reasonable suspicion to stop my client’s car.  In that case, the officer alleged that my client almost struck him while he had other cars pulled over making a stop.  After taking pictures of the road, it showed that the defendant would have had no where to drive to get around the officer, and other officers who were also in the road, did not show any reaction to the defendant’s driving. The officer followed the client until a point where the road came to a fork and claimed to have witnesses a marked lane violation.  The judge based on the cross examination did not credit that the officer had reasonable suspicion and allowed the motion.  TheeLarose case had cruiser camera making the job of the presentation of the evidence easier.  When there is no cruiser camera, going out to the scene and trying to recreate it can help to show the lack of reasonable suspicion for the stop, and if the motion is denied, still may help to minimize claiming of erratic driving at trial.

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