Virginia Traffic Law: What’s a Fog Line? . . . or Don’t Drive on a Fog Line

In U.S. v. Williams, Criminal No. 3:13MJ137 (2013), a criminal defendant was charged with possession of marijuana, among a bunch of other crimes.  He moved the court to suppress all evidence of his crimes on the ground that the arresting officer lacked reasonable suspicion to stop the defendant’s vehicle in the first instance.  The arresting officer claimed that he did have reasonable suspicion to believe that the defendant had committed a crime: his car touched one of the fog lines on at least five occasions.  As such, the court was faced with some interest questions: (i) um, what is a fog line?, (ii) does simply touching a fog line constitute a crime?, and (iii) does simply touching a fog line at least give an officer reasonable suspicion that a crime was committed?  Richmond U.S. District Magistrate Judge David J. Novak fortunately had answers to these questions.

(i) Um, what is a fog line? Judge Novak held that a fog line is nothing more than the white boundary lines we see on the right edge of most of our highway roads.

(ii) Does simply touching a fog line constitute a crime?  Judge Novak held that it does constitute a crime under Va. Code § 46.2-804(2).

Va. Code § 46.2-804(2) states that a vehicle shall be driven as nearly as is practicable entirely within a single lane.  This poses some interesting issues that the judge had to resolve.  Firstly, what’s a single lane?  Does a single lane include everything before the start of the boundary line such that simply touching it would constitute not driving within a single lane?  Or does a single lane include the entirety of the boundary line such that only touching outside the boundary line would constitute not driving within a single lane?  Secondly, doesn’t the “nearly as is practicable” language imply some flexibility in interpreting this criminal statute so as to avoid criminalizing every little driving goof?  Judge Novak swiftly held that the legislature’s use of the word “within” in this code section and “between” in the code section defining a highway implies that proper driving under this statute occurs within the boundary lines (i.e., not on the boundary lines).  He buttressed this decision with the practical argument that the lane must not include the boundary line or else two cars heading in opposite directions can each occupy their own single lane yet be heading for a collision in the middle of the road.  He did not address whether this code section should be read more flexibly given the “nearly as is practicable language.”

(iii) Does simply touching a fog line at least give an officer reasonable suspicion that a crime was committed?  Absolutely yes, considering that it is a crime in this judge’s opinion.

So what does this all mean?  Well, it means that even the most ticky tacky driving goof can be not only grounds to pull you over but also to prosecute for failing to drive within a single lane.

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Nicholas Solan

About Nicholas Solan

Nicholas Jon Solan is a founding partner of Solan Alzamora, PLLC in Fairfax, Virginia. He specializes in family law and criminal/traffic law, including but not limited to charges for speeding, reckless driving, improper driving, driving on a suspended license, DUI/DWI, possession of marijuana, possession of a controlled substance, assault and battery, and eluding the police. He can be reached at (703) 359-0088 or nsolan@SAlawfirm.com or www.SAlawfirm.com.