Say Anything Blog

The Supreme Court of Virginia recently threw out a drunk driving conviction because the officer who pulled over the drunk driver, who did indeed turn out to be inebriated, hadn’t actually observed any traffic violations committed by the driver.  Instead, the officer was reacting to an anonymous report that the driver was drunk.

US Supreme Court Chief Justice John Roberts (joined by Justice Scalia) wanted to take up this case, but his fellow justices ruled against him.  And I think they were right.

WASHINGTON – Chief Justice John Roberts spoke out in vain Tuesday against a lower court ruling he says will “grant drunk drivers ‘one free swerve’” that could potentially end someone’s life.

Roberts wanted the Supreme Court to review the lower court ruling but he failed to persuade enough of his colleagues. The court declined to hear an appeal from Virginia officials who had their drunk driving conviction of Joseph A. Moses Harris, Jr. thrown out by that state’s Supreme Court. Police were notified by an anonymous tipster that Harris was driving intoxicated, but the arresting officer did not see Harris break any traffic laws. ...

“The decision below commands that police officers following a driver reported to be drunk do nothing until they see the driver actually do something unsafe on the road — by which time it may be too late,” Roberts wrote. ...

“The stakes are high. The effect of the rule below will be to grant drunk drivers ‘one free swerve’ before they can be legally pulled over by police,” Roberts said. “It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check.” ...

Harris was convicted of driving while intoxicated, but the Virginia Supreme Court threw out his conviction. The court said since the police officer did not see erratic driving behavior like swerving, there was not a reasonable suspicion of criminal activity to warrant the stop.

I agree with Roberts that a drunk driver poses a serious threat on the road.  What I don’t agree with is the idea that the cop can just pull the driver over without probable cause.  And an anonymous tip is simply not enough probable cause.

The whole point of drunk driving laws is taking unsafe drivers off the road.  If someone is not driving erratically or violating any traffic laws then they are not, by definition, an unsafe driver.  This officer could have continued to follow Harris.  If Harris had broken a traffic law at some later time he could have lawfully pulled him over.  Or, if Harris had gotten home safely without violating any laws the matter could have been dropped.

But none of that happened.  Instead the officer acted without probable cause and the conviction was, rightfully, thrown out of court.