Vehicle Swerve Supported Stop for Texting

A police officer’s belief that defendant was texting while driving, a secondary offense in Virginia, did not prevent the officer from stopping defendant after he swerved toward the officer’s car in the adjacent lane, which provided cause to stop for reckless driving; the stop was legal and the Richmond U.S. District Court Magistrate Judge denies defendant’s motion to suppress evidence of marijuana possession and driving while intoxicated.

The officer recognized that texting while driving constituted a secondary offense. The officer identified “inattentive driving” (reckless driving) as the primary offense for the stop. He testified he could not charge defendant with both reckless driving and DUI as a result of his experience in the court system. When the officer stopped defendant’s vehicle, he repeatedly told defendant that he stopped him for texting and did not say he stopped him for inattentive or reckless driving. The officer ultimately issued citations for DWI, failing to maintain one lane of travel, using a handheld cellular device while operating the vehicle, resisting arrest without force and possession of marijuana.

The Virginia General Assembly, in Va. Code § 46.2-1078.1(C), has placed a significant restriction on the enforcement of texting violations by removing the ability to issue a citation for the offense when no other offense is involved. Because an officer may not enforce the texting statute (i.e., issue a citation) absent another violation, an officer may not stop a vehicle based solely on a violation of this statute.

However, the court finds the officer had cause to stop or arrest defendant for reckless driving in violation of Va. Code § 46.2-852. When questioned by the court as to the statutory violation of “inattentive driving,” the officer cited the reckless driving statute. The officer’s testimony, which the court found credible, established that he had to use his brakes to avoid being struck by defendant’s vehicle as defendant’s vehicle drifted towards the officer’s lane.

Ultimately, the officer’s subjective decision-making about whether to issue a reckless driving citation holds little relevance to resolution of the motion to suppress. The issue is simply whether, when objectively viewing the facts at the time of the stop, a reasonable police officer had cause to issue a citation for reckless driving. And the evidence introduced during the suppression hearing established that the officer had cause to do so.

Motion to suppress is denied.

U.S. v. Wingle (Novak) No. 3:12cv378, Jan. 4, 2013; USDC at Richmond, Va.; Katharine M.E. Adams, AUSA; Peter D. Eliades for defendant. VLW 013-3-031, 13 pp.