2013 VT 70


State v. Tuma (2012-365)
 
2013 VT 70
 
[Filed 09-Aug-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 70

 

No. 2012-365

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Windham Unit,


 


Criminal Division


 


 


Marek L. Tuma


February Term, 2013


 


 


 


 


David
  Suntag, J.


 

Steven M. Brown, Windham County Deputy State’s Attorney,
Brattleboro, and Greg Nagurney,
  Department of State’s Attorneys, Montpelier, for
Plaintiff-Appellant.
 
James A. Valente of Costello Valente &
Gentry, P.C., Brattleboro, for Defendant-Appellee.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
DOOLEY, J.  The State of Vermont appeals the suppression of
evidence obtained in the stop of defendant Marek Tuma’s vehicle that led to his
arrest and charge of driving under the influence (DUI), arguing that the fact
that one side of defendant’s front license plate was one to two inches below
the other gave rise to reasonable suspicion that he was committing a traffic
violation.  We affirm.
¶ 2.            
The facts leading to the stop of defendant’s vehicle are not in
dispute.  On November 13, 2011, a police officer observed defendant
driving on Putney Road in Brattleboro.  The officer observed, in his own
words, that “the front plate on the passenger side of that plate was
approximately one to two inches lower than the driver’s side of the
plate.”  He initiated a motor vehicle stop based on this observation
because he believed that the position of the license plate constituted a
violation of 23 V.S.A. § 511, which mandates that license plates on
cars “shall be kept horizontal.”  He confirmed during the motion hearing
that this was the sole reason that he initiated the stop.  
¶ 3.            
Based on his interaction with defendant, the officer suspected that
defendant had operated the car under the influence of alcohol, and requested
that defendant perform a number of sobriety tests, some of which defendant
failed.  Defendant was arrested and charged with DUI-2.  The State
moved to amend the information to charge a DUI-3 and added a DUI-3-Refusal
charge.  The trial court found probable cause on the first count but not
on the DUI-3-Refusal.  
¶ 4.            
Defendant filed a motion to suppress, arguing that having one edge of
his license plate slightly below the other did not violate Vermont law, and
there was, therefore, no reasonable suspicion that
would have permitted the officer to stop his vehicle.  The trial court
orally granted the motion to suppress, ruling that the “one to two inches off
level” was “horizontal,” for the purposes of the statute.  It also noted,
however, that “the problem here is not that the officer wasn’t acting in good
faith”—it just found that the officer was incorrect about the law.  The
State moved for permission to appeal, which the court granted.  
¶ 5.            
As there are no disputed facts related to the motion to suppress, we
review only the trial court’s legal analysis.  See State v. Edmonds,
2012 VT 81, ¶ 5, ___ Vt. ___, 58 A.3d 961. 
Our review is de novo.  Id.
¶ 6.            
The relevant statute reads:
  A motor
vehicle operated on any highway shall have displayed in a conspicuous place
either one or two number plates as the commissioner of motor vehicles may
require. . . . If two are furnished, one shall be securely
attached to the rear and one to the front of the vehicle. The number plates
shall be kept entirely unobscured, the numerals and the letters thereon shall
be plainly legible at all times. They shall be kept horizontal, shall be
so fastened as not to swing . . . . A
person shall not operate a motor vehicle unless number plates are displayed as
provided in this section.
23
V.S.A. § 511 (emphasis added).
¶ 7.            
In construing a statute, we “aim to implement the intent of the
Legislature and will presume the Legislature intended the plain, ordinary
meaning of the statute.”  Pease v. Windsor Dev.
Review Bd., 2011 VT 103, ¶ 17, 190 Vt. 639, 35 A.3d 1019 (quotation
omitted).  The State argues on appeal that § 511 is plain on
its face that any difference in level between the two sides of the
license plates means that the license place is not “horizontal” for the purpose
of this statute.  Defendant argues that such cannot have been the
Legislature’s intent, and even if it were, the language of the statute is ambiguous
and should therefore be construed in his favor because of the rule of
lenity.  
¶
8.            
We note, first of all, the principle that even a minor traffic
infraction can be the basis of a traffic stop.  See State v. Marshall,
2010 VT 81, ¶ 5, 188 Vt. 640, 8 A.3d 1086 (“[I]f a violation has occurred—even
a simple traffic violation—it is reasonable for the police to stop a
driver.”).  In the past, “we have found stops justified where officers had
reason only to suspect that a noncriminal motor vehicle code violation
occurred.”  Id. ¶ 6.  Moreover, even
a violation of a statute that “is often violated and impossible to comply with”
may lead to reasonable suspicion that justifies a stop, because the
impossibility of compliance is “ultimately for the Legislature to address, not
this Court.”  State v. Fletcher, 2010 VT 27, ¶ 12, 187 Vt.
632, 996 A.2d 213.  At the same time, however, we
do not construe statutes in such a way as to lead to “absurd or irrational
results.”  State v. Rice, 145 Vt. 25, 34, 483
A.2d 248, 253 (1984).
¶ 9.            
Both sides cite different dictionary definitions that they have found
for the word “horizontal,” some of which define it as “level” and others of
which do not.  While we understand this line of argument, given that the
trial court based its ruling in part on its conclusion that the term
“horizontal” did not mean “level,” we do not believe that the answer to this
question will come by combing through dictionaries for definitions of the word
“horizontal.”  Rather, we agree with a Michigan federal district court,
which, faced with an argument about how flat an axis could be while still being
defined as “horizontal,” found that “dictionary definitions do not conclusively
favor either side’s view of the plain and ordinary meaning of the term
horizontal.”  Whirlpool Corp. v. LG Elecs., Inc.,
423 F. Supp. 2d 730, 738-39 (W.D. Mich. 2004).  Nor do we wish to
enter into the fray that arose at the motion hearing regarding the relationship
between a horizontal license plate and a potentially non-horizontal bumper.[1]
¶ 10.         Perhaps
not too surprisingly, precedent from other states on this precise issue is
sparse.  The State cites one Nebraska case, State v. Hyland, in which
the court determined that a license plate hanging at either 45 degrees or
vertically—depending on whose version of the story was correct—was not “fully
upright” for the purposes of that state’s license plate statute.  769 N.W.2d 781, 784 (Neb. Ct. App. 2009).  This case
provides no particular help to us.  The wording of the statute was
different, and even the defendant’s own estimate of the angle was a rather
dramatic tilt of 45 degrees.
¶ 11.         With
no satisfying answer coming from the word itself or from other states, we must
find another way to interpret the word “horizontal” in a non-absurd manner.
 The State admitted at oral argument that a difference in height of
“one-sixteenth of an inch” would be impossible to identify as not horizontal,
and that the question was “one of degree.”  Defense counsel, for his part,
proposed that an appropriate reading of not horizontal might be: “when it’s
closer to diagonal than it is to horizontal,”—that is,
a tilt of up to 22.5 degrees would be permissible.  While we agree that
that might be a reasonable interpretation of the statute, we decline to make
such a specific mathematical ruling.  
¶
12.        
Rather, to answer this question, we must consider the intent of the
Legislature in enacting this statute.  This requires no delving into the
annals of the Vermont Legislature.  See 23 V.S.A. § 304(b)(2)(B)
(“[T]he primary purpose of motor vehicle number plates is vehicle
identification.”); see also Martin v. State, 2003 VT 14, ¶ 43, 175 Vt.
80, 819 A.2d 742 (Johnson, J., dissenting) (“[T]he stated goal of Vermont in
issuing . . . license plates . . . is
to aid in vehicle identification.”  (citing Perry v. McDonald, 280
F.3d 159, 167 (2nd Cir. 2001))).  Naturally enough, then, all of the
mandates in § 511 governing the manner of display of license plates are related
to visibility and readability of the plate: the license plate must be
unobscured, legible, and “so fastened as not to swing”—swinging, of course,
makes the license plate harder to read.[2] 

¶
13.        
Given this understanding, we have previously analyzed license-plate
statutes as related to visibility or readability.  Vermont cases involving
§ 511 to this date—most of which have been non-precedential three-justice cases,
but which nonetheless demonstrate the usual application of the statute to
motor-vehicle stops—have been cases where the improper placement or display or
license plates has decreased visibility, and correspondingly made the vehicle
more difficult to identify.[3] 
See, e.g., State v. Bowley, No. 2007-045, 2007 WL 5313370, at *1 (Vt.
Dec. 19 2007) (unpub. mem.),
https://www.vermontjudiciary.org/LC/unpublishedeo.aspx (not reaching the
question of whether a license plate on the front dashboard satisfies
§ 511, but finding officer’s stop justified because “officer observed that
defendant’s plate was not displayed on the front bumper of defendant’s car
where the officer would routinely have checked”); State v. Richardson,
No. 2001-064, 2002 WL 34423170, at *1 (Vt. June 27, 2002) (unpub. mem.),
https://www.vermontjudiciary.org/LC/unpublishedeo.aspx (officer’s observation
that the “defendant’s rear license plate was totally obscured by snow, in
violation of 23 V.S.A. § 511” was “reasonable basis to effectuate a
stop”); State v. Langlois, 164 Vt. 173, 175, 667 A.2d 46, 47 (1995)
(“[T]he officer was justified in stopping defendant’s vehicle because the front
license plate was not visible.”).  In a case involving 23
V.S.A. § 1248(b), which mandates that license plate lights allow the
rear license plate to be seen from fifty feet away, we went so far as to find a
stop unjustified where, although one of the lights that illuminated the
defendant’s rear license plate was out, “the State presented no evidence that
the numerals or letters on defendant’s rear plate were not illuminated to the
degree required by § 1248.”  State v. Lussier, 171 Vt. 19, 37,
757 A.2d 1017, 1029 (2000); see also State v. Katz, No. 2007-173, 2008
WL 2815924, at *1-2 (Vt. Feb. 2008) (unpub. mem.),
https://www.vermontjudiciary.org/LC/unpublishedeo.aspx (finding a stop
unjustified under § 1248(b) where “officer presented no testimony [in a
civil suspension hearing], and the State adduced no other evidence, showing that
he was within fifty feet from the rear of the vehicle when he allegedly
observed that the rear plate was not illuminated”).  
¶ 14.         Consequently,
we find a proper reading of the statute to be that a license plate ceases to be
“horizontal” when the angle of the license makes it difficult for a person with
normal vision to read it.  We decline at this point to define what that
angle is, although we suspect that it might be something akin to defense
counsel’s proposal of “closer to diagonal than it is to
horizontal.”   Of course, evidence of an observer’s ability to read a
license plate may inform an interpretation in a specific case.
¶ 15.         As
for the case at hand, the State makes no argument that the license plate was
not legible, and the photo that is part of the record and that both parties
agree is a representation of the license plate as it was fastened on the day of
the stop, further belies any such assertion.  Given these facts, we agree
with defense counsel that although there are cases where the angle of a license
plate would be enough to justify a stop based on non-horizontality, this is not
that case.
Affirmed.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
Consider, for example, this exchange in the motion hearing: 
 
  THE COURT:
So what are you looking at when you’re deciding it’s not horizontal or
is? . . . .  
  THE WITNESS
[The officer]: Depends on the case, your honor.  If I was looking at a
vehicle that had noticeable damage to the front bumper, and that appeared
askew, I would assume that the license plate would be askew, because there was
damage to that front bumper.  
  THE COURT:
And so it would or would not be horizontal, then, in your mind?  
  THE WITNESS:
In that particular case, the license plate would not be horizontal because it
would be—if it were firmly attached to the bumper, as it should be with the two
screws on each side, and the bumper was the item that was not level, then the
license plate itself would be firmly attached.  And if the bumper was not
damaged, would be level, I guess.


[2] 
As a California court put it in an unpublished opinion: “[T]he ultimate
objective of the . . . statutory requirements [regarding
license plate display] is to have license plates in positions on a vehicle from
which they can be easily read.”  People v. Slocum,
No. H032818, 2009 WL 1101242, at *3 (Santa Clara Cnty.
Supr. Ct. April 24, 2009).  Although the California statute did not
involve a requirement that a plate be horizontal, the court inferred it from a
requirement that the license plate by securely fastened, remarking, “Obviously
a front license plate canted at an angle over 45 degrees from horizontal, while
more readable than one that is upside down, is not as readable as one that is
upright.”  Id.  
 


[3] 
As the State aptly pointed out at oral argument, this is not a
“hotly-litigated” statute.



