STATE OF NEW JERSEY, Criminal Action
Plaintiff,
v. DECISION
ARTHUR WOODRUFF,
Defendant.
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION – CRIMINAL PART
MERCER COUNTY
DOCKET NO. 18177
APPEAL NO. 1-2008
Decided: June 25, 2008
Laura Kotarba, Assistant Prosecutor, for plaintiff (Joseph L. Bocchini, Jr., Mercer County
Prosecutor).
David P. Schroth, for defendant.
OSTRER, J.S.C.
This interlocutory appeal from the municipal court requires this court to construe
the motor vehicle code provision that commands drivers to maintain a lane “as nearly as
practicable” and to change lanes safely. N.J.S.A. 39:4-88(b). The municipal court
denied defendant’s motion to suppress the fruits of an investigatory traffic stop that the
officer conducted after determining that the driver had failed to maintain a lane. No New
Jersey court has construed the provision in a published decision, although it has been a
part of New Jersey’s rules of the road since 1931. L. 1931, c. 247, § 9. In sustaining the
APPROVED FOR PUBLICATION
November 17, 2008
COMMITTEE ON OPINIONS
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stop, this court will rely upon the statute’s plain meaning, and persuasive authority from
other jurisdictions.
After a de novo review of a largely stipulated record below, this court finds the
following facts by a preponderance of the evidence. A few minutes after midnight on
May 25, 2007, East Windsor Township Police Officer Stephen Aquaviva observed
Arthur Woodruff driving his small Toyota pickup truck south on Route 130 toward
Hankins Road. Woodruff was in the right-hand lane. It is undisputed that Woodruff
twice veered out of his lane, crossing over the fog line, which separates the right lane’s
edge and the shoulder. The officer’s report did not say how far Woodruff entered the
shoulder, but this court, like the municipal court, credits the officer’s unchallenged
testimony at the suppression hearing that each time, the truck was half in lane, and half
on the shoulder.1 As stated in his report, the officer then “activated the overhead lights to
the marked police vehicle to conduct a motor vehicle stop [for a] violation of [N.J.S.A.]
39:4-88B (failure to maintain lane).” Aquaviva ultimately issued summonses for failing
to maintain lane, careless driving, reckless driving, refusal to submit to a test to determine
if the driver was driving under the influence, and driving under the influence.
Defendant challenges the stop and subsequent investigation solely upon the basis
that (1) defendant’s repeated deviation from his lane did not amount to a violation of the
failure-to-maintain-lane law; and (2) the stop was not justified by the community
caretaking exception to the warrant requirement. This court has separately addressed the
community caretaking exception. See State v. Washington, 296 N.J. Super. 569 (App.
Div. 1997) (investigatory traffic stop justified based on community caretaking exception
1
This court gives “due, although not necessarily controlling, regard to the opportunity of the magistrate to
judge the credibility of the witnesses.” State v. Johnson, 42 N.J. 146, 157 (1964).
3
when driver was weaving within his lane of travel and was driving 36 m.p.h. in 45 m.p.h.
zone). The court writes to address the failure-to-maintain-lane law.
It is well settled that a police officer may, without a warrant, conduct an
investigatory traffic stop based on a reasonable and articulable suspicion that the
defendant engaged in a traffic offense. “[A] stop founded on a suspected motor vehicle
violation essentially is governed by the same case law used to evaluate a stop based on
suspected criminal or quasi-criminal activity.” State v. Golotta, 178 N.J. 205, 213 (2003).
The “articulable reasons” or “particularized suspicion” … must
be based upon the law enforcement officer's assessment of the
totality of circumstances with which he is faced. Such
observations are those that, in view of [the] officer's experience
and knowledge, taken together with rational inferences drawn
from those facts, reasonabl[y] warrant the limited intrusion
upon the individual's freedom.
[State v. Davis, 104 N.J. 490, 504 (1986).]
Reasonable suspicion is a “lower standard than the probable cause necessary to
sustain an arrest.” State v. Golotta, supra, 178 N.J. at 213. Reasonable articulable
suspicion does not require that the officer prove that the defendant actually committed a
motor vehicle violation; he need only prove that he had a reasonable and articulable
suspicion of a violation. State v. Jones, 326 N.J. Super. 234, 239 (App. Div. 1999).
Thus, the stop in this case may be grounded in a reasonable and articulable
suspicion that the driver violated the law requiring drivers to maintain their lane and
change lanes safely. Consequently, the court must construe N.J.S.A. 39:4-88(b)
(“Section 88(b)”), which states: “[A] vehicle shall be driven as nearly as practicable
entirely within a single lane and shall not be moved from that lane until the driver has
first ascertained that the movement can be made with safety.”
4
No binding New Jersey case law has interpreted section 88(b). Defendant argues
first that a driver does not violate the law unless his movement is proved to be unsafe to
other drivers. Second, he argues that two deviations from a lane, even if by half-a-car-
width, are insufficient to constitute a violation. Based on the plain language of the statute
and persuasive authority from other states, the court rejects both arguments, and will
address them in turn.
Based on the plain language, the safety element applies only to changing lanes,
not maintaining lanes. Section 88(b) imposes two requirements. First, a driver must, as
nearly as practicable, drive within his single lane, in other words, maintain his lane.
Second, a driver may not change lanes until he can do so safely. The first clause of
section 88(b) proscribes deviation from a lane. Thus, it covers situations where the driver
has no intention to change lanes, or where the driver does not or cannot change lanes.
For example, a driver can violate the first clause when deviating from the lane of a
single-lane, one-way road, or on a single-lane ramp to or from a highway, or when
driving in a three-lane highway, in which two lanes are traveling against the driver. In
those cases, no lane-change is possible, but the driver’s failure to maintain a lane is
proscribed.
The second clause of section 88(b) pertains to movements from a lane. It requires
drivers to change lanes safely. For example, a sudden, unexpected lane change may be
unsafe on a crowded roadway, and inconsequential on a deserted one. When the
Legislature has intended to condition a violation on the driver’s impact on other
motorists, it has said so. See, e.g., N.J.S.A. 39:4-126 (making it a violation for a driver to
change lanes without signaling if it might affect other motorists). On the other hand, like
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the first clause of section 88(b), the Motor Vehicle Code elsewhere requires accurate
driving, as nearly as practicable, without requiring separate proof of a safety impact. See,
e.g., N.J.S.A. 39:4-82 (requiring driving “as closely as possible to the right-hand edge or
curb of the roadway, unless it is impracticable to travel on that side of the roadway”);
N.J.S.A. 39:4-123 (driver intending to turn right must approach in the far right lane and
make the right turn “as close as practicable to the right hand curb or edge of the
roadway”).
Persuasive authority from other states supports this court’s interpretation of the
statute. New Jersey’s provision, like that of most states, is based on the Uniform Vehicle
Code. See Unif. Vehicle Code § 11-309(a), reprinted in Traffic Laws Annotated,
National Committee on Uniform Traffic Laws and Ordinances, U.S. Dep’t of Transp.
(1979). Construing a comparable provision, the Illinois Supreme Court held that the
statute creates two separate requirements for lane usage: first, the motorist must drive as
nearly as practicable within one lane, and second, a motorist may not move from one lane
to another until he can do so safely. People v. Smith, 665 N.E.2d 1215, 1218-19 (Ill.
1996). Federal and state courts in Kansas have reached the same conclusion. United
States v. Jones, 501 F. Supp.2d 1284, 1298 (D. Kan. 2007); State v. Marx, 171 P.3d 276,
282-83 (Kan. Ct. App. 2007) (expressly rejecting State v. Ross, infra), reh’g. granted
(Kan. April 23, 2008).
This court finds unpersuasive contrary authority that unless wandering over a lane
affected other vehicles’ safety, no violation has occurred. See State v. Ross, 149 P.3d
876 (Kan. Ct. App.) (finding that a violation of failure to maintain a lane is a violation
only if the driver’s actions were unsafe), rev. denied, (Kan. June 21, 2007); Rowe v.
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Maryland, 769 A.2d 879, 884-85 (Md. 2001) (same); Commonwealth v. Gleason, 785
A.2d 983 (Pa. 2001) (repeated crossing of fog line did not constitute violation because it
did not create safety hazard); Hernandez v. Texas, 983 S.W.2d 867, 870-71 (Tex. App.
1998) (stating that violation occurs “only when a vehicle fails to stay within its lane and
such movement is not safe or is not made safely”).
In sum, this court concludes that the State need not prove that Woodruff’s
extreme deviation from the right lane affected the safety of other drivers. Woodruff was
not attempting to change lanes. He was driving in a single lane, but was unable to remain
within that lane.2
The court also rejects defendant’s argument that, in any event, two departures
from a lane do not suffice to establish a violation. The defense argued that conceivably,
when a driver twice deviates from a lane, it “can be for an innocuous, harmless reason
such as reaching for a tissue. . . .” However, the number of lane departures is just one
factor in determining whether a driver has adhered to a single lane as nearly as
practicable.
The statute plainly does not make it a violation anytime a driver strays from a
lane. If it is not practicable to maintain the lane, then a departure from lane is not a
violation. The issue is, what is meant by the clause, “as nearly as practicable?”
Considering the plain language of the statute, and the persuasive authority of other courts,
this court finds that a driver must maintain a lane to the extent that a person may
2
This court does not intend to imply that it was safe for Woodruff twice to drive three feet into the
shoulder, simply because other motorists were not present. First, Aquaviva was present. Cf. State v.
Moss, 277 N.J. Super. 545, 547 (App. Div. 1994) (finding violation of statute prohibiting failure to signal if
other traffic “may be affected,” where police vehicle was immediately behind defendant’s vehicle).
Second, after repeatedly entering the shoulder, it was reasonable for the officer to fear that Woodruff might
drive off the roadway, or collide with roadside obstructions like signs or posts, especially if the shoulder
narrowed or his failure to maintain lane worsened.
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reasonably maintain the lane, given surrounding circumstances, such as road conditions,
weather, vehicle condition, and vehicle size and lane width, and taking into account the
skill that a reasonable driver, as opposed to a perfect driver, should have.
On its face, the “as nearly as practicable” language apparently would excuse a
departure from the lane caused by obstacles, road conditions, or perhaps the relative
width of the vehicle in comparison to the lane. See, e.g., United States v. Gregory, 79
F.3d 973, 978 (10th Cir. 1996) (disapproving traffic stop of truck that “briefly crossed
into the right shoulder emergency lane” when driving on winding, mountainous road in
windy conditions, finding that “any vehicle could be subject to an isolated incident of
moving into the right shoulder of the roadway”). But, if physical conditions do not
justify wandering from the lane, a repeated departure from a lane may constitute a
violation. United States v. Ozbirn, 189 F.3d 1194, 1198 (10th Cir. 1999) (holding traffic
stop was reasonable where no “adverse physical conditions existed” and driver of motor
home passed over onto shoulder “twice within a quarter mile”). In State v. Marx, supra,
171 P.3d at 283, the court stated that the “‘nearly as practicable’ language allows a driver
to momentarily move outside a lane of traffic due to special circumstances such as
weather conditions or an obstacle in the road,” but the court found a reasonable and
articulable basis to stop a motor home that crossed the fog line, overcorrected, and then
crossed the center line.
This court finds persuasive the Tenth Circuit’s general rule that the lane
maintenance statute requires “a fact-specific inquiry into the particular circumstances
present during the incident in question in order to determine whether the driver could
reasonably be expected to maintain a straight course at that time in that vehicle on that
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roadway.” United States v. Alvarado, 430 F.3d 1305, 1309 (10th Cir. 2005) (holding that
single departure may constitute violation). But see Rowe v. Maryland, supra, 769 A.2d at
887 (construing statute to require “more … than a momentary crossing or touching of an
edge or lane line”).
Based on such a fact-sensitive analysis, one or two deviations from a lane may or
may not constitute a violation, depending on the circumstances. While it might not be
reasonable to expect a driver to avoid even the slightest deviation from a lane over an
extended distance, it may be reasonable to expect drivers to avoid a sudden, significant
deviation from the lane or a sudden, over-compensating return back, absent physical
obstacles, mechanical difficulty, or other uncontrollable circumstances. Moreover, even
if it may be unreasonable to expect a driver on an empty road to avoid any slight
deviation from a lane over an extended distance, it would be reasonable to expect drivers
to avoid repeatedly deviating from the lane, although slightly, over a short distance.
Also, a driver who suddenly deviates from the lane and then overcompensates because he
is adjusting his stereo, or reaching for food, or turning around to silence rowdy children,
would not be maintaining lane as nearly as practicable. In this court’s view, a driver
reasonably should not let such diversions or distractions cause him to lose control of his
vehicle.
Applying these principles, the court finds that the officer had a reasonable and
articulable suspicion of a violation of the failure-to-maintain-lane law. As noted above,
in order to justify a stop, the State need not prove beyond a reasonable doubt that the
defendant violated the statute. It need only prove a reasonable and articulable suspicion
of a violation. State v. Jones, supra, 326 N.J. Super. at 239. Given the extreme deviation
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of lane, half Woodruff’s truck entered the shoulder, and the repeated nature of the
deviation, the officer at least had a reasonable and articulable suspicion of a violation.
He was therefore justified in stopping Woodruff to determine if he drove to the right
because of road obstacles, vehicle failure, or other reasons that made it impracticable for
him to drive in the single lane. In so doing, if the officer uncovered evidence that gave
rise to a reasonable and articulable suspicion of a separate offense, driving under the
influence, he would have been entitled to pursue an investigation of that possible offense
as well. See State v. Dickey, 152 N.J. 468, 479-80 (1998) (stating that circumstances or
findings upon initial investigatory stop may give rise to suspicions that warrant
broadened inquiry).
In sum, the officer had a reasonable and articulable suspicion of failure to
maintain lane under N.J.S.A. 39:4-88. Therefore, the motion to suppress is denied. The
case is remanded to municipal court for trial.
