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Carpentino v. State8/25/2004
James F. Carpentino appeals his conviction for driving while under the influence. [FN1] He contends that most of the evidence against him was obtained during an illegal investigatory stop.
Before trial, Carpentino moved to suppress evidence gathered after he was stopped. The district court held an evidentiary hearing to resolve this motion. At the hearing, North Pole Police Officer Billy Bellant testified that at approximately 2:07 in the morning of August 31, 2002, he was on patrol in the area of a bar called the Elf's Den. Officer Bellant saw a vehicle leaving the vicinity of the Elf's Den. Officer Bellant followed this vehicle. The vehicle turned onto Mission Road, where the speed limit was 35 miles per hour. Soon after, the vehicle turned onto Hurst Road, where the speed limit was 40 miles per hour.
Although the driver had no apparent problems driving at the lower speed limit on Mission Road, he did have problems driving at the higher speed limit on Hurst Road. Officer Bellant testified that in his experience, it was not unusual for impaired drivers to show no obvious problem at slower speeds, but to then have trouble when driving faster.
As the vehicle proceeded on Hurst Road, Officer Bellant saw it cross the fog line several times. As described by Officer Bellant, the vehicle was weaving as it was driven down Hurst Road. Several times the vehicle gradually veered to the right, crossed the fog line, moved back to the left, and then veered to the right, again crossing the fog line. After watching this happen three or four times over a half-mile distance, Officer Bellant stopped the vehicle and contacted the driver, Carpentino. Except for weaving over the fog line several times, Officer Bellant did not observe any other traffic violations.
For his part, Carpentino introduced a videotape he had made showing the condition of the edge of Hurst Road, and the condition of its fog line. Officer Bellant conceded that the fog line was intermittent on Hurst Road, and that there were places along the road where there was little distance between the edge of the road and the adjoining ditch. But Officer Bellant pointed out that the videotape showed that there were places along the roadway where the fog line was present and visible. He said that he saw Carpentino cross the fog line where the fog line was visible.
After stopping Carpentino, Officer Bellant observed signs that Carpentino was intoxicated. After administering field sobriety tests, Officer Bellant arrested Carpentino for driving while under the influence. Later, Carpentino's breath alcohol content was measured at .115 percent.
Carpentino testified that he had left the Elf's Den and was driving on Hurst Road, where he was stopped. He said that Hurst Road is a "two lane road in real bad condition." He conceded that there is a fog line, but said that it is faded and worn out in many places. He said that in the area he was stopped, "there is a real light white line." He also testified that there is little or no shoulder along Hurst Road.
*2 In the area where he was stopped, Carpentino measured the width of the roadway to the right of the fog line. He also measured the width of his tires. Based on these measurements, he testified that it would have been impossible for his passenger tires to have completely crossed the fog line without his vehicle dropping into the ditch that adjoined the roadway. The video recording he made of the roadway showed that the fog line was faint in some places, and completely worn away in others. The videotape also showed that in some places, there was little distance between the edge of the road and a steep drop-off.
District Court Judge Jane F. Kauvar denied the motion to suppress. She found that the stop was justified because Officer Bellant had
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