“Oh What A Tangled Web We Weave.” Sir Walter Scott was not referring to NC case law when he penned that famous line, but he certainly could have been on the issue of motor vehicle stops based on weaving. Impaired drivers typically have a hard time driving in a straight line.  North Carolina’s appellate decisions about what constitutes “weaving” to support a motor vehicle stop are, quite frankly, a mess. Not much more can be said.  Inconsistent comes to mind. Even schizophrenic. How is the motoring public supposed to know what should and should not be tolerated as normal driving behavior when our courts can’t define what weaving is?

Our Court of Appeals has said in the past that weaving alone was not enough for law enforcement to stop a motor vehicle, absent a plus factor such as driving late at night, or being near bars or restaurants that serve alcohol, or driving noticeably slower than the speed limit. But then the Court did a poor job of defining what it meant by weaving. Did it mean within the lane, or within the lane and touching the divider and fog lines, or weaving outside the lines? How is one completed weaving movement defined? Is the touching of the center line and the driver’s subsequent correction back to the middle of the lane one weave or two weaves? In some decisions, the Court completely forgot to even consider the “plus” factors even though they were staring them in the face.

Three times “swerving” to the fog line at 4 PM in the afternoon was not enough for a good stop in State v. Fields.  Continuous weaving within the lane, not touching the fog line or the center line, after 11 PM was enough to stop in State v. Otto, according to the NC Supremes, who reversed the Court of Appeals. Weaving within the lane, and subsequently having the passenger side tires going over the lane divider and into the right lane after 10 PM smack dab in the middle of the bar scene in downtown Raleigh was not enough in Derbyshire. Going over the lane divider lines on a major highway for seconds at the time was not enough for the Court of Appeals in Kochuk, who characterized this as “normal driving behavior,” but the Supremes reversed. Weaving like a “bouncing ball,” even though it was within the lane of travel, was enough to stop in State v. Fields.

What? Do the Court of Appeals and the N.C. Supreme Court just not like each other? Can we please have some consistency here?

Not that we criminal defense practitioners mind inconsistencies. In fact, conflicting decisions from our appellate courts always give us a fighting chance to win. If there is an opportunity to cut off a motor vehicle stop at its inception, we know that this is often our best chance to prevail.

Everyone knows that the exercise of driving is just “controlled weaving.” We are not robots in a vacuum. The conditions of our roads, our vehicles, and the weather play a part in driving behavior. A two lane country road is usually narrower than an interstate. Going left of center in a 35 mph zone in town is different than straddling the white dotted line for a couple of seconds on a desolate I-40.

As we usher in 2016, there should be no shortage of driving while impaired cases that reach our appellate courts where the initial stop was based on weaving. It will be interesting to see if the Courts abandon their “plus” analysis, as they did in Otto, or whether they adopt a new approach to analyzing reasonable suspicion. Maybe they will finally come up with a unified definition of what kind of weaving it takes to support a motor vehicle stop.