GP was charged with OUIL
The client was observed "crossing the fog line three to four feet" when the officer decided to pursue the vehichle for further investigation. (The fog line is the solid white line on the exterior of the roadway.) The officer pursued the vehicle until it turned onto a road with a sign at its entryway, "Road Closed to Thru Traffic." The officer continued to follow the vehicle, observing "continuous weaving several feet from center on new pavement." After effectuating a traffic stop, the officer detected a strong odor of intoxicants, and said the driver suffered from bloodshot, watery eyes. The driver admitted to drinking a few beers, but he refused to submit to a preliminary breath test. At the police station, the driver refused to submit to a Datamaster test.
Although a preliminary motion to suppress the stop based upon probable cause was unsuccessful, the argument and examination of the officer proved invaluable at a later jury trial. It was argued at the motion that the officer lacked probable cause to stop the vehicle, as it was legal for the driver to enter the closed roadway unless the officer determined that the driver did not live on the street. On cross-examination, the officer admitted that it was impossible for the client to have swerved three feet off the fog line, as the vehicle would have hit an obstacle. The officer further admitted that it was impossible to judge the degree of weaving on the unpainted roadway.
Before the jury, the officer did not testify to significant weaving, and no evidence of blood alcohol or field sobriety tests was admissible. The jury returned after two days deliberation without a verdict. As a result of the hung jury, the prosecuting attorney accepted a plea to careless driving.
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