Article from: www.thenewspaper.com/news/42/4263.asp

11/21/2013

Oregon: Cracked Windshield Traffic Stop Fails Without Evidence
Oregon Court of Appeals rejects claim of cracked windshield danger without evidence.

The mere assertion that a cracked windshield might be dangerous does not justify a traffic stop, the Oregon Court of Appeals ruled last week. State prosecutors attempted to use a catch-all safety statute about driving a vehicle with an "obstructed view" to convict George Duane Anderson, who had been stopped after a Jackson County sheriff's deputy saw the windshield of Anderson's pickup truck.

"I noticed a large crack going through the windshield of that vehicle and that is why I stopped the vehicle," Deputy McKay testified. "The crack was going from -- stretching from the passenger side across the windshield all the way to the driver's side of the vehicle... So it would have been kind of in the eyesight area."

As a result of the traffic stop, Anderson was charged with driving on a suspended license and driving with an obstructed vehicle window. The deputy failed to photograph the windshield, so his testimony served as the only evidence in the trial. The deputy also noted the wrong statute on the citation. Anderson denied the the "driving an unsafe vehicle" and "operation of a vehicle that is loaded or equipped to obstruct the driver" applied to his situation. Jackson County Circuit Court Judge Timothy Barnack disagreed and found Anderson guilty, but the a three-judge Court of Appeals panel found that Anderson was actually right.

"The difficulty for the state's position is that there is insufficient evidence about the nature of the crack to conclude that McKay's observations made it objectively reasonable to believe that the windshield created the probable risk of harm or loss necessary to establish a violation," Judge James C. Egan wrote for the appellate panel.

It is not enough under Oregon law to claim that a crack in the windshield could possibly cause a dangerous situation. The court found that to be overly speculative, and that police must prove that harm is probable, not possible, which is something the state failed to do.

"There was no evidence whatsoever about the size or extent of the spiderwebbing or about its effect on the opacity of the windshield," Judge Egan wrote. "Although there may well be instances where a windshield crack interferes with a driver's vision to the point where driving the vehicle creates a probable risk of harm or loss, the state has not carried its burden to establish that it was objectively reasonable for McKay to conclude that such was the case here. Accordingly, the trial court erred in denying defendant's motion to suppress on the ground that there was probable cause at the time of the stop for McKay to conclude that defendant had violated ORS 815.020."

A copy of the decision is available in a 60k PDF file at the source link below.

Source: Oregon v. Anderson (Court of Appeals, State of Oregon, 11/14/2013)

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