MONTPELIER — In a sharply divided decision, the Vermont Supreme Court has upheld the right of police to pull over drivers whom they suspect are impaired, even if those motorists aren’t driving erratically or breaking any traffic laws.
Vermont law-enforcement officials hailed the decision as an endorsement of their ongoing efforts to rid the roads of motorists who are under the influence of alcohol or drugs. But civil libertarians and the two dissenting justices in the case warned that the ruling could lead to more unjustified traffic stops and the further invasion of drivers’ privacy.
In a 3–2 split decision handed down July 20, Vermont’s highest court upheld the conviction and license suspension of Timothy Pratt  of Berlin. In the early morning hours of April 21, 2005, Pratt was stopped on I-89 near Waterbury while driving home from a rock concert. According to court records, a state trooper noticed Pratt’s car slowly drifting back and forth within his travel lane, then activated an in-car video camera and followed him for about 5 miles. The trooper eventually pulled Pratt over and, noticing a faint smell of alcohol, asked him to perform a breathalyzer test. When Pratt refused, the trooper arrested him on suspicion of driving under the influence. Later, a breathalyzer confirmed Pratt’s blood-alcohol concentration was at 0.102, above the legal limit of 0.08.
Pratt challenged his conviction and license suspension, contending that the evidence — i.e., the breathalyzer and field-sobriety tests — were inadmissible because the trooper lacked probable cause to pull him over. Pratt argued that he was driving within the speed limit and wasn’t weaving across the center line or fog line, a claim supported by the police videotape and the trooper’s own testimony. The police officer acknowledged that Pratt’s vehicle didn’t jerk or swerve abruptly, and that drifting within one’s own lane is completely normal behavior for most drivers. In fact, when asked how the defendant’s driving differed from that of any other driver on the road, the officer responded, “It doesn’t. I stopped him and he was impaired. That’s the only difference.”
But the Supreme Court didn’t accept Pratt’s argument, relying instead on the expertise of police officers to recognize signs of impairment. While the court didn’t go so far as to issue a “bright-line rule” — that is, declaring that all weaving within one’s lane constitutes reasonable suspicion of an impaired driver — it did look at “the totality of the circumstances.” In doing so, the court chose to balance “the public’s interest in safety against the relatively minimal intrusion posed by a brief investigative detention.”
Sergeant John Flannigan, a spokesperson for the Vermont State Police , says he’s pleased with the ruling. “Impaired driving is a very serious issue, causing at least a third of the fatal crashes that we see statewide every year,” he says. “It’s a good decision, but it doesn’t change the way we do business.”
But Pratt’s attorney, Stephen Craddock, disagrees. He contends that this ruling sets a dangerous precedent by further lowering the bar for when police may detain drivers, especially at night.
“Nobody drives their car directly in the middle of the lane. Why? They’re smoking a cigarette, tuning the radio, talking to people in the car, daydreaming, whatever,” he says. “Now they’re saying, ‘It’s one o’clock in the morning, and unless you’re driving absolutely perfectly, you can be pulled over.’”
In her dissenting opinion, Justice Denise Johnson  also warned about the broader ramifications of the decision. “I fear the majority has opted for a simple, bright-line rule over common sense and ordinary human experience,” she writes. “Indeed, under such a rule, a significant portion of the driving public could soon expect to be subject to unforeseen invasions of privacy on virtually a daily basis.”
Allen Gilbert, executive director of the American Civil Liberties Union of Vermont , says he isn’t surprised by the ruling, because it reflects the rightward shift of the court under Governor Jim Douglas. He points out that the dissenting opinion came from the more liberal, Kunin and Dean appointments — namely, Johnson and Marilyn Skoglund , respectively. The more conservative, Jim Douglas appointments — Justices Paul Reiber  and Brian Burgess  — wrote the majority opinion. Interestingly, though, the swing vote in this case was cast by a justice often considered the most liberal on the court: Justice John Dooley , who was appointed by Governor Madeline Kunin in 1987.