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Distraction?

Rear view mirror ornaments seem to be a big problem in Windham County, CT. Three months ago I wrote about a Superior Court decision from last December, in which the court found that C.G.S. 14-99f(c) permitted cops to pull drivers over because, well, the cop thought that the air freshener was obstructing the driver’s view. I thought it was a pretty bad decision at the time, and wrong on the law, and today I see that the Appellate Court sees this as an area of potential litigation.

In State v. Cyrus (a different case from the one I blogged about), the Appellate Court upheld the granting of a motion to suppress (same court, different judge) in a decision written by former Supreme Court Chief Justice Ellen Ash Peters [Boys and girls, read that decision. That is how a decision is written. Take notes.]

In Cyrus, the defendant was arrested after the police received an anonymous tip that he was driving drunk. The cop didn’t observe anything improper about the operation of the vehicle and the motion to suppress was granted on the ground that the police didn’t have reasonable and articulable suspicion to detain the driver. In a motion to reconsider, the State alleged that the “chain or crucifix” hanging from the rear-view mirror was a second justifiable basis for stopping the car.

The state, apparently confused by the sheer tenuousness of its own argument, couldn’t make up its mind:

In its principal brief, the state took the position that the statute does not require any proof that the view of the operator actually be obstructed or that his attention actually be distracted. It relied on cases in other jurisdictions that have held that even relatively small objects hanging from a rearview mirror justify the minimal intrusion engendered by a motor vehicle stop. In its reply brief, however, the state concedes that our statute does not proscribe ‘‘all items hanging from a rearview mirror’’ but instead requires a showing that the item or object be hung in such a manner as to ‘‘interfere’’ with the unobstructed view of the highway or to ‘‘distract the operator.’’ In its reply brief, the state effectively agrees with the defendant that, on its face, § 14-99f (c) does not make the hanging of an object from a rearview mirror a per se infraction.

This leaves very little for the Appellate Court to do. Given that the State concedes that the legislature did not intend to make an infraction the mere hanging of an object from the rearview mirror, but rather the actual distraction caused by such an object, the Appellate Court has no trouble upholding the verdict.

The Court, however, has laid the groundwork for future appeals in this area:

We leave for another day, on another record, the question of how much of a distraction or impairment of an operator’s vision the state must establish to prove a violation of § 14-99f (c).

Specifically, we need not and do not decide in this case whether a violation of § 14-99f (c) can be  established merely by evidence that an object attached to a car’s rearview mirror was moving back and forth.

Indeed that will be the $1,000,000 question in future cases. What does the State specifically have to prove and, more importantly, how much evidence is sufficient? I would bet that the State would argue that the testimony of an officer that an object was moving back and forth and thus obstructed the view is sufficient. The defense, on the other hand, might be more inclined to move in a more scientific direction. How would you counter this?