DECISION AND ORDER

We have been asked to determine whether or not driving on or over the "fog-line" in this case against this Defendant gave rise to a violation of Vehicle and Traffic Law Section 1128 (a). The Defendant Barbara Kern is asking this Court to invalidate the stop of her vehicle and to suppress all evidence obtained from that stop on the grounds that there was no probable/reasonable cause to believe she had violated the law, specifically, VTL Section 1128 (a). A probable cause/reasonable cause Ingles Hearing was held in Sheridan Town Court on December 20, 2012.

This case is not unique, certainly not in the Town of Sheridan where we have reviewed a number of cases concerning the use of VTL Section 1128. In this decision we review recent developments. Some of the cases and rules discussed in this Decision are alleged infractions of subdivision (a) and others, subdivision (d). In this case it was an alleged violation of subdivision (a). What this cases, and the cases discussed below have in common, whether violations of subdivision (a) or (d), is that the action of defendant that caused the law enforcement officer to [*2]stop him or her was the crossing of the white solid line on the right side of the roadway, often referred to as the "fog line" without any indication that it was hazardous to do so or that the driving was also erratic so as to raise the suspicion of impairment. These so called "fog line" stops have been the subject of a number of lower court and several Appellate Division decisions and, at least since 2008, there have been developments which are instructive in examining and balancing the Fourth Amendment Constitutional Rights versus the Public Safety issues created by drunken driving. (See e.g. People v. Teall, Defendant No. 11-04897 decided July 25, 2011, City Court, Rochester, NY)

FACTS: Defendant was stopped on January 26, 2012 at approximately 1:26 a.m for an alleged violation of V & T Law Section 1128(a). At a Hearing to determine the validity of the stop and whether or not to suppress evidence obtained, the Trooper testified that he was heading west on Route 20 having turned on to 20 from South Roberts Road in the Town of Sheridan when he saw a lone green Chevy heading east bound on Route 20 not far from South Roberts Road. The Trooper testified that the vehicle was going in the opposite direction at approximately 40 mph when he noticed defendants vehicles tires cross the white fog line. As he turned his vehicle around defendant signaled and then turned onto South Roberts Road Northbound. The Trooper followed defendant on to Roberts Road where he again observed defendants vehicle cross the fog line. He activated his lights and defendant signaled and pulled over just before (as he later learned) her own driveway. The Trooper also stated that he was concerned because he did not know if there were pedestrians on the shoulder or if there were ditches. When asked what about defendant's driving was unsafe, he stated that it was traveling over the fog line.

Upon cross examination it was established that defendant had in fact crossed two times, once on Route 20 and once on Roberts Road and that defendant was not speeding, did not cross the center line or commit any other violations. The road was poorly lit according to the testimony. He also agreed that there was nothing on the side of the road, nothing to hit, no pedestrians or other vehicles and that she pulled over promptly and safely when he directed her to.

ISSUE: Was there probable cause to stop the Defendant Kerns on the night of January 26, 2012 for crossing the single white line on the right side of the road, the so-called "fog line"or was the stop of defendant's vehicle based upon a mistake of law (that crossing the fog line is per se illegal) thus requiring suppression of evidence and dismissal of the charges.

DISCUSSION: Defendant is asking the Court to find that crossing the "fog line" of the roadway is not a per se violation of law. It is her defense that a single white line on the right side of the road is there to assist the driver in seeing the edge of the road in fog or difficult driving conditions and is a "guideline", not a hazard marking or, more specifically, a traffic control device. In order to be guilty of a violation of V & T 1128, the actions of the Driver must be hazardous to himself or others. If a Driver is observed weaving within the lane or driving erratically, he could be stopped for dangerous driving or driving while impaired and if observed "swerving" back and forth over the fog line, perhaps, with a violation of V & T 1128.

New York State Vehicle and Traffic Law Section 1128 is set forth as follows: [*3]

§ 1128. Driving on roadways laned for traffic

Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply:

(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

(b) Upon a roadway which is divided into three lanes and provides for two-way movement of traffic a vehicle shall not be driven in the center lane except when overtaking and passing another vehicle traveling in the same direction when such center lane is clear of traffic within a safe distance, or in preparation for making a left turn or where such center lane is at the time allocated exclusively to traffic moving in the same direction that the vehicle is proceeding and such allocation is designated by official traffic-control devices.

(c) When official traffic-control devices direct slow-moving traffic, trucks, buses or specified types of vehicles to use a designated lane or designate those lanes to be used by traffic moving in a particular direction regardless of the center of the roadway, drivers of vehicles shall obey the directions of every such sign, signal or marking.

(d) When official markings are in place indicating those portions of any roadway where crossing such markings would be especially hazardous, no driver of a vehicle proceeding along such highway shall at any time drive across such markings.

"This court is bound by the Decision of the Appellate Term Second Department as reported in People v. Shulman 14 Misc. 3rd, 129a. In that case the trial court found that the defendant violated section 1128d of the Vehicle and Traffic Law in that the defendant while operating a motor vehicle crossed the solid white line which separated his lane from the pavement, "the fog line". The Appellate Term in reversing the court held, "crossing a fog line is not prohibited and does not constitute a violation of the New York State Vehicle and Traffic Law." (Fisher at 3)

"Effective September 13, 2007, the entire chapter was replaced by the New York State Supplement to the National Manual on Uniform Traffic Control Devices for Streets and highways—2003 Edition. As of the date of the defendant's arrest, the only provision [*4]regarding white line pavement markings states as follows:

"White barrier markings are used where lane changing is legally prohibited by official regulation. An order, ordinance, rule, or regulation establishing specific lane changing prohibitions for a particular section of roadway is necessary for no-lane-changing markings to be official markings,' as referred to in Section 1128(d) of the Vehicle & Traffic Law." (17 NYCRR § 3B.04)

Here, no evidence was presented establishing that any "order, ordinance, rule, or regulation" had been adopted and in effect on February 15, 2008 "establishing specific lane changing prohibitions" for the particular section of Joyce Road where Trooper Ramos observed the defendant's vehicle cross the "boundary" or "fog" line.The cases relied upon by the prosecution ( People v. Ogden, 250 AD2d 1001, 673 N.Y.S.2d 249; People v. Walters, 213 AD2d 810, 623 N.Y.S.2d 396; People v. Sundquist, 175 AD2d 319, 572 N.Y.S.2d 410) are unavailing. In all three cases, the offending motorists operated their respective vehicles over or across the double yellow line separating the lanes of vehicular travel, a clear violation of Vehicle and Traffic Law § 1128(a) and (d). The only case tending to support the legality of the stop is People v. Parris, 26 AD3d 393, 809 N.Y.S.2d 176, leave to appeal denied 6 NY3d 851, 816 N.Y.S.2d 757, 849 N.E.2d 980. There, the stop of a vehicle was upheld where the state trooper observed the defendant's vehicle twice cross onto the shoulder of the highway "within a short distance" and the defendant was arrested for driving on the shoulder of the roadway in violation of Vehicle and Traffic Law § 1131 as well as for violating Vehicle and Traffic Law § 1128(d)." (Bordeaux at 2- 3)

"INSERT the following paragraph:

Support:

30A A solid double white line is used where lane changing is legally prohibited by official regulation. An order, ordinance, rule, or regulation establishing specific lane changing prohibitions for a particular section of roadway is necessary for no-lane-changing markings to be "official markings," as referred to in Section 1128(d) of the New York State Vehicle and Traffic Law. (17 NYCRR 3B.04, 17 NY ADC 3B.04)"

Again, in People v Davis, 58 AD3d 896 (3rd Dept., 2009) the Appellate Court reversed the ruling of the lower court upholding the stop of Defendant Davis for crossing the fog line "three or four times." (Davis at 898) The Davis Court did not go so far as to hold that a fog line encroachment can never be the basis for a valid traffic stop as a matter of law ( Davis at 898 )but did focus on other factors being present. (People v. Davis, 58 AD3d 896 (3rd Dept., 2009)

Legislation was reintroduced yet again as recently as October 5, 2012 (which has not been acted [*5]upon and is still pending in both the Senate and the Assembly ) It proposes to clarify VTL 1128. New York Sponsors Memorandum, 2012 A.B. 3559 October 5, 2012 New York Assembly235th Legislature, 2012 Regular Session BILL NUMBER:A3559 See also, 2011 NY A.B. 7099 (NS), 2011 New York Assembly Bill No. 7099, New York Two Hundred Thirty-Fourth Legislative Session, (Apr 12, 2011), VERSION: Introduced, PROPOSED ACTION: Amended )( 2011 NY S.B. 1932 (NS), 2011 New York Senate Bill No. 1932, New York Two Hundred Thirty-Fourth Legislative Session, (Jan 14, 2011), VERSION: Introduced, PROPOSED ACTION: Amended)

It reads as follows:

"Section 1. Subdivision (d) of section 1128 of the vehicle and traffic law, as added by chapter 206 of the laws of 1971, is amended to read as follows:

(d) When official (delete: markings are in place indicating those portions of any roadway where crossing such markings would be especially hazardous, no driver of a vehicle proceeding along such highway shall at any time drive across such markings )

add: "traffic control devices are installed on roadways prohibiting the changing of lanes, drivers of vehicles shall obey the direction of every such device. For the purpose of this subdi-vision, official traffic control devices are designated by a two normal solid white line pavement markings or a sign."

§ 2. This act shall take effect immediately.

" .....TITLE OF BILL: An act to amend the vehicle and traffic law, in relation to roadway lane markings

PURPOSE OR GENERAL IDEA OF BILL: To amend the Vehicle and Traffic Law to clarify which roadway official traffic control devices prohibit the changing of travel lanes in the same direction.

SUMMARY OF SPECIFIC PROVISIONS: Section 1 of the bill amends subdivision (d) of section 1128 of the Vehicle and Traffic Law to provide that when official traffic control devices are installed on roadways prohibiting the changing of lanes, drivers shall obey the direction of every such device, provided that for the purpose of this subdivision, official traffic control devices are designated by a two normal solid while line pavement marking or a sign.

Section 2 provides that this act shall take effect immediately.

JUSTIFICATION: The current Vehicle and Traffic Law S 1128(d) provides that when official markings are in place indicating those portions of any roadway where crossing such markings would be especially hazardous, no driver shall drive across such marking. The original intent of this section was as a no lane change provision to law with the determination of what is especially hazardous to be made by the DOT (for state roads) or local legislative body (for local roads). However, the current language is vague and police officers have issued tickets for a violation of section 1128(d) to anyone whom the officer deems has crossed a marking such as the edge line. In People v. Shulman, the Appellate [*6]Term in the 2d Department found that the white edge line along the side of the road does not constitute an "official marking" under section 1128(d) (People v. Shulman, 836 N.Y.S.2d 488 (2006)). The Court held that the crossing of a solid white line is discouraged but not prohibited and that such a marking does not constitute an indication that crossing it would be especially hazardous.

In the time since Shulman was decided, the regulations have changed and the New York Supplement to the Federal Manual on Uniform Traffic Control Devices (MUTCD) now provides the following:

White barrier markings are used where lane changing is legally prohibit- ed by official regulation. An order, ordinance, rule or regulation establishing specific lane prohibitions for a particular section of roadway is necessary for no-lane-changing markings to be "official mark- ings" as referred to in Section 1128(d) of the Vehicle & Traffic Law (NYCRR 17 S 3B.04).

This regulation has been interpreted to mean that in the absence of an order, ordinance, rule, or regulation prohibiting it, a motorist who drives to the right of the white line marking the beginning of the shoulder (described in that case as the "fog line") could not be convicted of violating section 1128(d) (People v. Bordeau, 873 N.Y.S.2d 513 (County Ct. .2008)

In this bill, the language "where changing lanes is prohibited" is used to be consistent with 11-309(d) of the Uniform Vehicle Code. Further, this bill is consistent with the Federal MUTCD Section 3B.04 providing that (a) where crossing a lane line marking is discouraged, the marking shall consist of a normal solid white line, and (b) where crossing is prohibited, the lane line marking shall consist of a solid double white line.

While this legislation would clarify which roadway markings a motorist cannot cross under Vehicle and Traffic Law S 1128(d), this bill applies only to subdivision (d) where motorists are driving on roadways laned for traffic moving in the same direction. This bill would not affect other Vehicle and Traffic law provisions prohibiting driving on the shoulder or passing on the right in certain circumstances, including the following sections: S 1131 (no motor vehicle shall be driven over, across, along, or within any shoulder or slope of any state controlled- access highway except at a location specifically authorized and posted by the DOT), S 1126 (no passing zones), S 1123 (motorist may overtake and pass another vehicle on the right only under conditions permitting such movement in safety), S 1120 (a vehicle shall be driven upon the right of the roadway except in defined circumstances, including when travel on the shoulder or slope is permitted by section 1131), and 1160 (when travel on the shoulder or slope is authorized, a motorist may make a right turn from such shoulder or slope)." Memorandum in Support of AB 7099 (2011) and SB 1932(2011)

"....., since the vehicle was never observed weaving outside its lane of travel, the VTL § 1128(a) charge is not sustainable. Accordingly, the precise issue for this court to decide is whether it is constitutionally unreasonable for an officer to stop a moving vehicle after observing it repeatedly weaving entirely within a single lane of travel as it traveled a little more than a mile down a four lane city street. For the reasons which follow, the court finds it may not constitute a constitutional violation as long as a public safety concern is the reason proffered by the officer for the stop of the defendant's vehicle and a judge determines objectively that the circumstances presented by operation of the vehicle presented a clear and immediate threat to public safety." (Teall at 3)

"As in Davis, in the case before this Court, the officer did not indicate that the defendant was weaving within lane, driving erratically, speeding or driving too slowly. Here, the officer observed the defendant **411 cross the solid white shoulder line one time and return to her lane of travel. The officer was driving 300 feet behind the defendant's car. There were no other cars on the road. There is no indication that defendant's car drifted into the other southbound lane of traffic. There is no testimony as to how far over the fog line defendant drove the car. The defendant is not charged with a violation of Vehicle and Traffic Law section 1131 or 1128(d). When the officer activated his emergency lights, the defendant pulled over and stopped her vehicle appropriately in the shoulder of the road.

When read together, the decisions in People v. Shulman, supra, People v. Bordeau, supra, and People v. Davis, supra, persuade this Court that defendant's act of crossing the solid white fog line one time was insufficient, without more, to establish probable cause that she failed to "drive as nearly as practicable entirely within a single lane" and that she moved her vehicle unsafely from her lane of travel in violation of Vehicle and Traffic Law section 1128(a). In reaching its decision that P.O. Wassmer did not have sufficient probable cause to stop the defendant for a violation of Vehicle and Traffic Law section 1128(a), the Court need not address the further issues of probable cause to arrest for Driving While Intoxicated and the voluntariness of the defendant's statements to the officer. Defendant's motion to suppress is granted in all respects; all evidentiary*741 fruits of the stop are suppressed and precluded from use at trial." (People v. Luster 35 Misc 3d 735, 946 N.Y.S.2d 407, 2012 NY Slip Op. 22076)

THIS SHALL CONSTITUTE THE DECISION AND ORDER OF THE COURT

Dated: January 16, 2013
_______________________________________
Hon. Lydia Romer
Sheridan Town Justice