Monday, March 16, 2015

Size Does Matter

State v. Hurley2015 VT 46

By Amy Davis

Graduation tassels, air fresheners, and fuzzy dice have all sat in the trunk of my car anxiously waiting for the day when I can proudly display them from my review mirror.  Unfortunately, they probably still need to wait.

In June 2013, Defendant Hurley was driving through downtown Bennington when he was stopped for having a pine tree-shaped air freshener hanging from his rear view mirror in violation of 23 V.S.A. § 1125.  Based on the officer’s subsequent observations, Defendant was charged with driving over the legal limit and DUI.  Defendant moved to suppress and dismiss, arguing that the air freshener did not materially obstruct his vision.  At the subsequent bench trial, the officer admitted that a driver could see the road even with the presence of an air freshener.  The trial court denied the suppression motion, concluding that the statute prohibits the hanging of all objects from review mirrors, except those exempted by statute.  Defendant was later convicted and now appeals.

The statute on which the officer based the traffic stop states that you cannot hang any object (other than the rear view mirror) on the back of the windshield.  The statute identifies some exceptions, none of which include the ability to hang pine-scented goodness from your rear view mirror.  The question for SCOV is whether the statute prohibits all objects hanging from the rearview mirror, or only those that materially obstruct the driver’s vision.


The trial courts are split; Chittenden Superior Court says it’s the materially obstruct test, and the alternative view would prohibit sun visors and that handy compartment for storing sunglasses.  The defendant also argues this point, while the State argues that the plain language prohibits the hanging of any object from the mirror.

SCOV, reviewing de novo, looked to the legislative intent behind the statute, and determined that the State’s interpretation is overbroad, and violation must be linked to an obstruction of the driver’s vision.

First, the State’s interpretation is not supported by the state’s language.  The statute is entitled, “Obstructing windshields,” and, even though “obstruction” is never actually mentioned anywhere in the body of the statute, the statute intends for drivers to have a clear an unobstructed view of the road ahead of them.  Furthermore, the entire scope of Title 23 is to promote safety on public highways, the goal of § 1125 is to promote that purpose, and the State’s interpretation would extend far beyond that purpose.  In other words, our roads would be way too safe.

Second, SCOV construes statutes to “avoid unreasonable consequences” at odds with the Legislature’s intent.  If we went with the State’s interpretation, even conduct that was safe would be an infraction.  Many people drive with stuff hanging from their rear view mirror –
including spherical crystals, parking placards, and medical alert cards – and they drive just fine. Unless it’s through Bolton Flats on I-89 in the middle of winter, then everything goes to hell.  But that’s probably only related to the rage I feel December through March, and not actually related to fuzzy dice.

In State v. Tuma, another DUI charge came from a “hypertechnical reading of a minor motor vehicle statute,” where one side of the front license plate was lopsided and the statute stated license plates “shall be kept horizontal.”  There, the Court concluded that the plate was no longer “horizontal” when the angle of the plate made it difficult for a person to read it.  So, vertical? Anyway…

Third, the reason every criminal defense attorney in the state has been waiting for: there’s a constitutional problem with the State’s interpretation.  Because a traffic stop is a seizure, the Fourth Amendment is implicated.  If one could be stopped for the garage door clicker extending an inch beyond the visor, then the police could stop a large portion of the driving population without any safety rational.  As Justice Robinson put its, the State’s interpretation would “significantly reduce the personal liberty of drivers, and passengers, on Vermont’s highways by subjecting a substantial portion of them to police stops without any commensurate benefit to public safety.”

And finally, the rule of lenity requires that any doubts about ambiguous legislation be construed against the state.  Therefore, a hanging object must materially obstruct a driver’s vision.

So, is an air freshener a material obstruction? This is where SCOV declines to commit, and answers with a resounding, "it depends."  Each case requires a fact-specific inquiry, because hanging objects may or may not obstruct the driver’s vision depending on the size and whether they are stationary or not.  It’s not just the size of the ship, but the motion of the ocean, too.

For all this, SCOV concludes that “an operator of a motor vehicle violates 23 V.S.A. § 1125 only when an object hanging behind the windshield materially obstructs the driver’s view, and that a traffic stop is thus impermissible unless the officer can demonstrate a reasonable, articulable suspicion that a hanging object materially obstructs the driver’s view.”

But we’re not done yet, and all you defense attorneys can put down the champagne. The United States Supreme Court recently held in Heien v. North Carolina that reasonable suspicion to justify an investigatory stop might exist even when the suspicion is based on a mistake of law, as long as the mistake is objectively reasonable.  SCOV concludes that the officer’s stop was based on a misapprehension of the law that was objectively reasonable under the circumstances, so the Fourth Amendment does not require the exclusion of evidence gathered from the traffic stop.  Therefore, the trial court did not err in denying the defendant’s motion to suppress because it was still the right result for the wrong reason.

So Hurley’s conviction stands, and my stash of opaque beads and miniature boxing gloves will sit in the trunk until further notice.

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