State v. Derbyshire, 228 N.C. App. 670 (Aug. 6, 2013)

In this DWI case, the court held that the officer lacked reasonable suspicion to stop the defendant’s vehicle. At 10:05 pm on a Wednesday night an officer noticed that the defendant’s high beams were on. The officer also observed the defendant weave once within his lane of travel. When pressed about whether he weaved out of his lane, the officer indicated that “just . . . the right side of his tires” crossed over into the right-hand lane of traffic going in the same direction. The State presented no evidence that the stop occurred in an area ocf high alcohol consumption or that the officer considered such a fact as a part of her decision to stop the defendant. The court characterized the case as follows: “[W]e find that the totality of the circumstances . . . present one instance of weaving, in which the right side of Defendant’s tires crossed into the right-hand lane, as well as two conceivable “plus” factors — the fact that Defendant was driving at 10:05 on a Wednesday evening and the fact that [the officer] believed Defendant’s bright lights were on before she initiated the stop.” The court first noted that the weaving in this case was not constant and continuous. It went on to conclude that driving at 10:05 pm on a Wednesday evening and that the officer believed that the defendant’s bright lights were on “are not sufficiently uncommon to constitute valid ‘plus’ factors” to justify the stop under a “weaving plus” analysis.