DUI Appeal -Oregon DUII Cracked Windshield Stop Challenged

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In State of Oregon v. Elmore, --- P.3d ----, 2011 WL 891677 (Or.App.) the defendant entered a conditional plea of guilty reserving the right to appeal the denial of his motion to suppress challenging the stop of his car. At the motion to suppress, the following facts and testimony was adduced:

On the morning of June 4, 2007, Deputy Cochran saw defendant driving his vehicle on a highway. Cochran testified that he noticed “a large crack in the windshield, which is a violation of statute, and so I pulled him over for that.” Defendant testified that the crack “starts * * * on the driver's side four inches up from the bottom of the windshield. And then it progressively goes to the passenger side heading down towards the bottom of the windshield.” According to defendant, the crack was “18 inches to two feet” long. When Cochran was asked how “a crack like that [would] obstruct the vision either into or out of the vehicle,” he testified:

“[I]t depends. Some people drive around with big spiderwebs, that wasn't what this case was, you know, that would be more apparent. But anything as simple as one line, it may be in your direction of vision, it may be on the side of the window where you're looking through as you're turning or something like that. Another problem is because I had a cracked windshield with just one line that was cracked from a baseball game, is that cracked windshield will act like, sometimes like a prism with that crack and you get cracked glass and when the sunlight shines through it it will, you know, glint and glare off of that crack which is distracting.”

The applicable Oregon statute prohibits driving a vehicle when the windshield is obstructed by “any material that prohibits or impairs the ability to see into or out of the vehicle * * *. This subsection applies to any sign, poster, one-way glass, adhesive film, glaze application or other material if the material prohibits or impairs the ability to see into or out of the vehicle.”



At the suppression hearing, defendant's attorney argued that, under that statute, a crack is not a “material that prohibits or impairs the ability to see into or out of the vehicle.” On appeal, the court agreed:

“Material,” in the context of ORS 815.220(2), unambiguously connotes something that has physical substance for two reasons. First, a physical substance is something that, in the terms of the statute, may be “ upon any vehicle window.” ORS 815.220(2) (emphasis added). Second, the statute itself refers to particular items that constitute “material”- viz., “any sign, poster, one-way glass, adhesive film, glaze application”-all of which are things of physical substance. Id.



Applying that construction to this case, we readily conclude that a crack is not a “material.” As defendant posits, “a crack is not a tangible or physical object separate from the window itself. It does not have its own substance beyond pure window glass.” Here, the deputy stopped defendant because he saw a crack in defendant's windshield. Accordingly, because the facts, as the deputy actually perceived them, did not satisfy the elements of ORS 815.220(2), he lacked objective probable cause to stop defendant.

On appeal, the State also tried to argue that, even if the officer's reliance on that statute was wrong, there were alternative statutes that justified the stop. Refusing to allow the alternative bases, the appeals court said:

"[W]e decline to address the state's alternative contention. The state's argument in the trial court focused exclusively on ORS 815.220-that is, the state did not point to any of the statutes that it now raises on appeal. Had the state attempted to rely on those statutes in the trial court, defendant might well have developed the record differently. See Tiffin, 202 Or.App. at 202 (declining to address the state's alternative “argument that the stop was lawful based on the officers' reasonable suspicion that defendant was driving under the influence because the state did not make that argument to the trial court”; reasoning that, “[h]ad the state done so, defendant might have developed a different record below”).

NOTE: this appeal is good for 2 reasons - the interpretation of the statute was not bent to support the stop itself, and the State was prohibited from its last-ditch attempt to argue alternative means for the stop that were not raised at a time when the defense could have argued against them. It is nice to see a court enforcing appropriate rules of procedure even-handedly.





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