State v. Mealer
State v. Mealer
Opinion of the Court
The state appeals the trial court’s granting of a motion to suppress evidence obtained during a traffic stop on the ground that the officer lacked authority to stop defendant. We reverse and remand.
In July, 1992, Officer Fults observed defendant’s car parked next to the curb on a two-way street in North Bend. The car was parked facing the opposite way as the traffic. She then saw the car pull away from the curb and drive down the wrong side of the street for approximately a half block. Fults did not see any other vehicles on the street at the time that defendant was driving on the wrong side. She then followed defendant’s vehicle and stopped it based on her belief that defendant had committed a traffic infraction in her presence. When Fults asked defendant for her driver’s license, defendant said that her license was suspended. Fults noticed that defendant’s eyes were glassy and bloodshot, her speech was slurred and she smelled of alcohol. Defendant was arrested for felony driving while suspended and driving under the influence of intoxicants. ORS 811.182; ORS 813.010. During a pat-down search incident to arrest, Fults found marijuana on defendant’s person.
Defendant moved to suppress all evidence obtained from defendant during the traffic stop on the basis that the officer lacked authority to stop defendant. The trial court stated that it believed all of the officer’s testimony, but concluded that there was not a sufficient basis for the stop because a person who drives on the wrong side of the road is not in violation of the statute when there is no oncoming traffic. The court found that there was no such traffic at the time that defendant drove on the wrong side of the road. The state assigns error to the trial court’s granting of the motion to suppress.
A police officer may stop a person for a traffic infraction when the offense is committed in the officer’s presence. ORS 810.410.
The state argues that the trial court erred in concluding that it is not a violation of ORS 811.295 to drive on the wrong side of the road unless there is oncoming traffic. ORS 811.295 provides, in part:
“(1) A person commits the offense of failure to drive on the right if the person is operating a vehicle on a roadway of sufficient width and the person does not drive on the right half of the roadway.
“ (2) A person is not required to drive on the right side of .the roadway by this section under any of the following circumstances:
‘ ‘ (a) When overtaking and passing another vehicle proceeding in the same direction under the rules governing this movement in ORS 811.410 to 811.425 or 811.808.
“(b) When preparing to turn left in an intersection, alley or private road or driveway.
“(c) When an obstruction or condition exists making it necessary to drive to the left of the center of the roadway, provided that a driver doing so shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the roadway within a distance as to constitute an immediate hazard.
“(d) Upon a roadway divided into three marked lanes for traffic under the rules applicable on the roadway under ORS 811.380.
“(e) Upon a roadway restricted to one-way traffic.”
In arguing that ORS 811.295 is not violated unless there is oncoming traffic, defendant relies on a number of civil cases that interpreted predecessors to ORS 811.295
The issue in those cases was whether a negligence per se instruction should have been submitted to a jury where a person failed to drive on the right side of the road. Under the doctrine of negligence per se,
“courts may adopt the conduct required by [criminal or regulatory] statutes as that which would be expected of a reasonably prudent person * * *. However, when the statutes are not enacted for the purpose of determining civil liability, there is no requirement that courts do so.” Miller v. City of Portland, 288 Or 271, 277, 604 P2d 1261 (1980).
To determine whether the criterion of the statute should be substituted for that of a reasonably prudent person, the court must consider whether the injured person is a member of the
In negligence cases involving predecessors to ORS 811.295, the Supreme Court has held repeatedly that statutes requiring a driver to drive on the right apply only when there is oncoming traffic. See Lindner v. Ahlgren, 257 Or 127, 477 P2d 219 (1970), and cases cited therein. In other words, the court has concluded as a matter of law that a reasonably prudent person would drive on the right side of the road whenever there is oncoming traffic and, therefore, a person who fails to do so under such circumstances is presumed to be negligent. In contrast, in the absence of oncoming traffic, it is up to the jury to determine whether the person’s failure to drive on the right side of the road constitutes negligence.
The above analysis from negligence cases, however, is immaterial when the question is whether a person has committed a criminal or traffic offense. A person may violate a statute even though the conduct constituting the violation is not negligent. That distinction was recognized in State v. Betts, 235 Or 127, 384 P2d 198 (1963), in which the Supreme Court found that the trial court erred in allowing the jury, in deciding whether defendant was grossly negligent, to consider the fact that defendant drove on the wrong side of the road. The court concluded that a violation of the statute prohibiting driving on the left
We conclude, based on the plain language of the statute, that a person violates ORS 811.295 by driving on the wrong side of the road, regardless of whether there is oncoming traffic.
Reversed and remanded.
ORS 810.410 reads, in pertinent part:
“(2) Apolice officer may issue a citation to a person for a traffic infraction at any place within or outside the jurisdictional authority of the governmental unit by which the police officer is authorized to act when the traffic infraction is*459 committed in the police officer’s presence or when the police officer has probable cause to believe an offense has occurred based on a description of the vehicle or other information received from a police officer who observed the traffic infraction from a train.
“(3) A police officer:
“(a) Shall not arrest a person for a traffic infraction.
“(b) May stop and detain a person for a traffic infraction for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation.”
Although the statutory provisions at issue in those cases all concerned driving on the right side of the road, each differed from ORS 811.295. Accordingly, several of the decisions interpreting those statutes could be distinguished on that basis alone. However, because those cases are not controlling, we need not discuss the language specific to each of the former statutes.
Former ORS 483.308 (amended by Or Laws 1969, ch 215, § 1, repealed by Or Laws 1975, ch 451, § 291) provided, in part:
“(1) The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without impeding the safe operation of any vehicle approaching from the operation of any vehicle overtaken.
“(2) The driver of a vehicle shall not in any event drive to the left side of the center line of a highway.
“(a) When approaching the crest of a grade or upon a curve in the highway where the driver’s view along the highway is obstructed within a distance of 500 feet[J”
Because we conclude that the stop was justified fay the officer’s observation of the violation of ORS 811.295, we need not address the question of whether the parking offense that defendant allegedly committed in Fults’s presence would also justify the stop.
In State v. Johnson, 106 Or App 371, 374 & n 1,808 P2d 718 (1991), we noted that it was “questionable” whether a person whose vehicle crossed the center line violated ORS 811.370, or the related statute ORS 811.295, when there was no oncoming traffic. However, that statement was dicta and, to the extent that it is inconsistent with our holding here, it is disapproved.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.