Denial of cert in DUI case provokes dissent.

Byline: David Ziemer

There is nothing rare about the U.S. Supreme Court denying a petition for certiorari; it is the grant of a petition that is unusual. But a passionate dissent by two justices from a denial is rare.

The issue is one which has sharply divided courts around the country -- whether a police officer has reasonable suspicion to stop a motorist based solely on a citizen's report of a drunken driver, without any independent corroboration by the officer.

In the case before the Court, Virginia v. Harris, No. 08-1385, an anonymous tipster reported to Richmond police that Joseph Harris was driving while intoxicated. The tip described Harris, his car and the direction he was traveling in considerable detail.

An officer pulled Harris over without personally witnessing any erratic driving or traffic violations. The trial court and Virginia Court of Appeals upheld the legality of the stop, but the Virginia Supreme Court reversed, in a 4-3 decision. (668 S.E.2d 141 (Va. 2008).)

The Commonwealth of Virginia petitioned for certiorari, but the court denied review on Oct. 20. Chief Justice John Roberts dissented, in an opinion joined by Justice Antonin Scalia.

Justice Roberts complained, The decision below commands that police officers following a driver reported to be drunk do nothing until they see the driver actually do something unsafe on the road -- by which time it may be too late (emphasis in original).

After a lengthy discussion of the hazards of driving while intoxicated, the dissent noted a split between courts.

The majority of states, the dissent states, permit stops of allegedly drunk or erratic drivers, even when the officer does not personally witness any traffic violations before conducting the stop. Among the opinions cited is State of Wisconsin v. Rutzinski, 2001 WI 22, 241 Wis.2d 729, 623 N.W.2d 516.

Other states, including Virginia, require officers to confirm the tip through their own independent observation.

The dissent concluded, The conflict is clear and the stakes are high. The effect of the rule below will be to grant drunk drivers 'one free swerve' before they can legally be pulled over by police. It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check.

Case analysis

It's not wise to try to read too much into a denial of certiorari. Still...