‘Dangling Object’ Statute Not Vague

On appeal by the commonwealth, a Chesapeake Circuit Court holds that Va. Code § 46.2-1054, which prohibits dangling objects in a vehicle that obstruct the driver’s clear view of the highway, is not facially void for vagueness nor unconstitutionally void as applied to defendant driver, who was stopped by a police officer; the court remands the matter to the general district court for further proceedings.

This court’s jurisdiction is limited to determining the constitutionality of Va. Code § 46.2-1054; therefore, the court will not address the motion to suppress ruled upon by the general district court (GDC). The issue in the instant matter is whether Code § 46.2-1054 is vague as applied to defendant’s conduct.

The GDC made the following findings of fact: Defendant was driving a vehicle stopped by a Chesapeake police officer because a black tree-shaped air freshener was dangling from the vehicle’s rear view mirror. The officer testified that the dangling object was the only reason for the stop. The officer examined the air freshener at the time of the stop. He testified the air freshener was between two and a half and three inches at the bottom, hung approximately five inches from the bottom of the rear view mirror to the bottom of the air freshener with string accounting for at least some portion of the approximately five inches. The officer testified that it appeared to be a “traditional sized” tree air freshener, and that it tapered from the wide bottom to a point where the string attached at the top. The officer testified that while the vehicle was in motion, he saw the air freshener swinging from the rear view mirror. From the officer’s perspective, and taking into account his training, he believed the air freshener obstructed the driver’s clear view of the highway.

Statutory text

The primary words that must be examined in the instant statute are the phrase “obstruct the driver’s clear view of the highway”; specifically, the terms “obstruct,” “clear view” and “highway.” However, the phrase must be read in context with the entire statute.

The court finds that Code § 46.2-1054 uses clear and commonly understood terms that define the proscribed conduct with sufficient definiteness such that ordinary people can understand its parameters. It unambiguously provides that any object or objects suspended from a vehicle that obstructs a “driver’s clear view of the highway through the windshield,” other than those specifically exempted, violates Virginia law; therefore, the statute provides fair notice of its prohibitions.

Here, the legislature has enacted, in a concise yet encompassing fashion, a prohibition on suspending an object or objects in an unsafe manner. To prohibit objects of a legislatively defined size would not account for obstructions caused or negated by variations in the type of vehicle (with varying size and height of windows) or the size and sitting position of the driver. The determination of whether an object obstructs a “driver’s clear view of the highway through the windshield” is an individualized assessment, and is properly left to the fact finder.

The court is of the opinion that Code § 46.2-1054 does not confer unlimited discretion on law enforcement to determine whether an offense has occurred. The vagueness test does not forbid individualized assessments by law enforcement officers. Here, although the statute at issue relies on individualized assessments by those enforcing it – as numerous other penal statutes do – it does not encourage arbitrary and discriminatory enforcement.

The court finds Code § 46.2-1054 is neither facially void for vagueness nor unconstitutionally vague as applied to defendant. Pursuant to Va. Code § 16.1-131.1, this matter is remanded for proceedings inconsistent with the ruling of this court.

City of Chesapeake v. Evans (Smith) No. CL 15-1440, Sept. 29, 2015; Chesapeake Cir.Ct. VLW 015-8-112, 13 pp.