Road Worrier Blog

Road Worrier: Swerving driver beats DWI rap

The driver was brazen and indisputably – if we may use an old-fashioned word – drunk.

So how did he beat the DWI rap? The N.C. Court of Appeals says the police officer wasn’t justified in stopping him.

Snow was falling one night in February 2013 when James Lee Johnson stopped his pickup truck for a red light on King Street in Hendersonville – right next to a police car.

Johnson’s music blared. He revved his engine. Inches away, Officer Garrett Gardin took notice.

When the light turned green, Johnson hit the gas and turned left onto Bearcat Boulevard. His tires spun and screeched. His truck fishtailed on the slushy street.

Gardin turned on his blue lights and stopped Johnson a block or so away.

He testified later that the driver’s face was red, his speech was slurred and his eyes were glassy. Johnson said he’d had a few beers. He blew a .13 on the alcohol breath test – well above the legal drink-and-drive limit of .08. Gardin charged Johnson with driving while impaired.

Johnson pleaded guilty but filed an appeal, challenging Gardin’s decision to stop him. And earlier this month, the Court of Appeals effectively tossed out his DWI conviction.

The Hendersonville police officer “lacked sufficient reasonable suspicion” that Johnson had violated any traffic law, Judge Lucy Inman ruled on April 8. Judges Linda Stephens and Robert N. Hunter Jr. concurred.

That means the courts cannot consider the DWI evidence Gardin collected after he stopped Johnson.

This kind of case pops up from time to time, when our appellate courts are asked to second-guess a traffic stop. An initial ticket for speeding or unsafe passing usually isn’t worth the cost of an appeal, but the stakes are higher when the traffic stop leads to a more serious charge – often involving drugs found in the car.

Cocaine was at stake after a Surry County deputy stopped a car in 2009, but the ensuing legal fight focused on a broken brake light. The deputy didn’t know that North Carolina law required drivers to have only one working brake light, and the arrest was thrown out in state courts.

The U.S. Supreme Court ultimately reinstated the cocaine verdict, concluding in 2014 that the Surry deputy had made “a reasonable mistake” about our quirky law. (Legislators finally took action to correct the outdated safety statute, and now North Carolina does require drivers to have two working brake lights.)

Splitting hairs

Judges sometimes are asked to split hairs in these cases.

There was the Scotland County cocaine courier who forgot to signal before he turned into a parking lot. In that case, the conviction was upheld. The Court of Appeals concluded in 2010 that the driver behind him – a narcotics officer looking for an excuse to stop the courier – was affected by the defendant’s decision to make a turn.

Another turn-signal traffic stop was thrown out on appeal because the driver was in a turn-only lane – where no signal was needed.

Johnson was lucky. Gardin testified that he thought the driver was going too fast for slippery conditions, but he couldn’t say how fast. He didn’t suspect Johnson had been drinking until after he stopped him.

We’ve got a duty sometimes to protect people from themselves. We make stops all the time, just to make sure everything’s OK.

Herbert Blake, Hendersonville police chief

Johnson’s truck swerved but stayed in its lane, without crossing a line or bumping the curb. There were no cars or pedestrians nearby, and no one was in danger.

“Consequently, there was nothing illegal about Defendant’s left-hand turn onto Bearcat Boulevard, ” the Court of Appeals ruled. “... We cannot conclude that Officer Gardin had more than a hunch or generalized suspicion” that Johnson was violating traffic safety laws.

So is it open season now for hot-rodders to spin their tires and fishtail through the intersection, right under the noses of police? Probably not, Johnson’s lawyer says.

“If the officer had said something like, ‘I looked at his driving and thought he was impaired,’ I think the case might have gone in a different direction,” said attorney Jeff Gillette of Franklin.

Jeff Welty, a UNC School of Government professor who helps lawyers and police make sense of such traffic rulings, cites cases that have offered guidance in other circumstances.

An officer probably is not justified in stopping a driver who weaves just a bit in traffic – while inside the lane – or lingers at an intersection for a few moments after the light turns green. But if that driver veers into another lane or waits for 30 seconds at the green light, North Carolina judges are likely to agree with an officer’s decision to make a traffic stop, Welty said.

Prosecutors have not indicated whether they will ask the N.C. Supreme Court to consider the Johnson case.

Herbert Blake, the Hendersonville police chief, said his officers will respect the court’s ruling while they work to keep their town safe.

“We’ve got a duty sometimes to protect people from themselves,” Blake said. “We make stops all the time, just to make sure everything’s OK. To make sure there’s not some public safety concern down the road that could come back later to haunt our conscience.”

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