788 July 6, 2023 No. 346

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

PATRICK THOMAS LITTLE,

Defendant-Appellant.

Crook County Circuit Court

21CR04274; A176593

Annette C. Hillman, Judge.

Submitted January 26, 2023.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Matthew Blythe, Deputy Public Defender, Office 

of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Peenesh Shah, Assistant Attorney 

General, filed the brief for respondent.

Before Tookey, Presiding Judge, and Egan, Judge, and 

Kamins, Judge.

KAMINS, J.

Reversed and remanded.
Cite as 326 Or App 788 (2023) 789

KAMINS, J.

Defendant appeals from a judgment of conviction, 

entered after a conditional guilty plea, for one count of driving while suspended or revoked, ORS 811.182. He argues 

that the trial court erred when it denied his motion to suppress the evidence discovered during a traffic stop. In particular, he contends that a single, minor deviation over the 

fog line is not enough to support a citation for failing to drive 

within a lane. See ORS 811.370(1)(a) (requiring that a driver 

“[o]perate the vehicle as nearly as practicable entirely within 

a single lane”).1

 We conclude that a momentary and minor 

deviation over a lane line is not a violation of ORS 811.370 

and therefore reverse and remand.

We review the trial court’s ruling denying defendant’s motion to suppress for legal error and are bound by 

the trial court’s factual findings if there is any constitutionally sufficient evidence in the record to support them. State 

v. Maciel-Figueroa, 361 Or 163, 165-66, 389 P3d 1121 (2017). 

In order to stop and detain a person for a traffic violation, 

an officer “must have probable cause to believe that the person has committed a violation.” State v. Rabanales-Ramos, 

273 Or App 228, 234, 359 P3d 250 (2015). Probable cause 

has two components: (1) at the time of the stop, the officer 

must subjectively believe that a violation has occurred; and 

(2) that belief must be objectively reasonable under the circumstances. State v. Derby, 301 Or App 134, 138, 455 P3d 1009 

(2019). “For an officer’s belief to be objectively reasonable, the 

facts, as the officer perceives them, must actually constitute a 

traffic violation.” Id. Whether defendant’s conduct constitutes 

a violation of ORS 811.370 presents a question of statutory 

construction, which we review for legal error. Dept. of Human 

Services v. Hobart, 318 Or App 52, 55, 507 P3d 299 (2022).

1 ORS 811.370(1) provides:

“Except as provided in subsection (2) of this section, a person commits 

the offense of failure to drive within a lane if the person is operating a vehicle upon a roadway that is divided into two or more clearly marked lanes for 

traffic and the driver does not:

“(a) Operate the vehicle as nearly as practicable entirely within a single 

lane; and

“(b) Refrain from moving from that lane until the driver has first made 

certain that the movement can be made with safety.”
790 State v. Little

Turning to the facts, at approximately 9:00 p.m. 

Sergeant Durheim saw a small blue car turn right from 

Highway 380 onto Juniper Canyon Road. Both of those roads 

have center lines dividing oncoming traffic and fog lines on 

the outside of each lane. As defendant turned right, Durheim 

saw defendant’s back passenger side tire move over the fog 

line by the width of a tire, approximately six inches, and 

stay there for approximately 1.5 seconds. Durheim testified 

that there was nothing preventing defendant from traveling 

within a single lane without crossing the fog line on either 

Highway 380 or Juniper Canyon and he subjectively believed 

that he had probable cause to stop defendant for a violation 

of ORS 811.370. He stopped defendant and asked him for 

his driver’s license. Defendant admitted that his license was 

revoked, a fact that Durheim confirmed through dispatch. 

Defendant was cited for driving while suspended or revoked, 

ORS 811.182.

Defendant filed a motion to suppress the fruits of 

the traffic stop, arguing that Durheim lacked probable cause 

that defendant had committed a traffic violation, because 

he observed only a de minimis deviation from the lane. The 

trial court determined that it was practicable for defendant 

to stay in his lane, and though it found that defendant’s violation was “de minimis,” it denied the motion to suppress 

because “no appellate court has decided that a de minimis

touch of a lane line does not violate ORS 811.370.” Defendant 

then entered a conditional guilty plea, reserving his right to 

appeal the denial of the motion to suppress.

Defendant reprises his argument on appeal. The 

state responds that defendant’s deviation was no less significant than other cases in which this court has found there 

was sufficient probable cause under ORS 811.370, and points 

to our decisions in State v. Husk, 288 Or App 737, 407 P3d 

932 (2017), rev den, 362 Or 665 (2018), and State v. Rosling, 

288 Or App 357, 406 P3d 184 (2017), rev den, 362 Or 389 

(2018). Additionally, the state posits that the text of the statute does not provide an exception for a single, momentary 

deviation.2

2 The state argues in a footnote that even if the statute did not prohibit minor 

lane deviations, that would not implicate whether the officer had probable cause 

to investigate, because probable cause is a lower standard that does not require 
Cite as 326 Or App 788 (2023) 791

Although we have previously been called upon to 

interpret the meaning of ORS 811.370(1)(a), we have declined 

to reach the issue of whether a momentary and minor touching of a lane line is a violation of ORS 811.370. See Derby, 

301 Or App at 140 n 1 (“If a driver is moving forward in a 

clearly marked lane, any deviation from the lane—except 

possibly a truly de minimis one—may constitute failure to 

maintain a lane.”); Rosling, 288 Or App at 362 (“We agree 

with the state, although, in doing so, we need not reach the 

issue whether truly de minimis touching of a lane line is an 

offense under ORS 811.370.”); State v. McBroom, 179 Or App 

120, 125 n 3, 39 P3d 226 (2002) (“This is not a case in which 

defendant’s car’s tires touched the center line only briefly. 

We accordingly need not decide whether that act, standing 

alone, would give an officer probable cause to believe that 

a driver had failed to operate his or her car ‘as nearly as 

practicable entirely within a single lane.’” (Quoting ORS 

811.370(1)(a).)). To resolve that question, we must discern 

the intent of the legislature in enacting ORS 811.370.

When we interpret a statute, “[w]e ascertain the 

legislature’s intentions by examining the text of the statute 

in its context, along with relevant legislative history, and, 

if necessary, canons of construction.”3 State v. Cloutier, 351 

Or 68, 75, 261 P3d 1234 (2011) (citing State v. Gaines, 346 

Or 160, 171-73, 206 P3d 1042 (2009)). “[W]e give primary 

weight to the text and context of the disputed statutory 

terms,” because “there is no more persuasive evidence of the 

intent of the legislature than the words by which the legislature undertook to give expression to its wishes.” Kinzua 

Resources v. DEQ, 366 Or 674, 680, 468 P3d 410 (2020) (citations and internal quotation marks omitted).

We begin and end our analysis with the text. ORS 

811.370(1)(a) provides that a person commits the offense of 

failure to drive within a lane if the driver does not “[o]perate 

certainty. We reject that contention because to satisfy the standard for probable 

cause, “the facts, as the officer perceives them, must actually constitute a traffic 

violation.” Derby, 301 Or App at 138.

3 The parties have not cited, and we have not found any legislative history 

that is helpful to our analysis. See ORS 174.020(3) (“A court may limit its consideration of legislative history to the information that the parties provide to the 

court.”).
792 State v. Little

the vehicle as nearly as practicable entirely within a single lane[.]” We have previously interpreted “within a single 

lane” to mean that drivers must stay “within” the lines, and 

does not permit driving “on” the lines. McBroom, 179 Or App 

at 124. We also construed “practicable” to mean “possible 

to practice or perform,” “capable of being put into practice, 

done or accomplished,” or “feasible.” Id. at 124-25 (citation 

and internal quotation marks omitted). Were those the only 

words in the statute, that language would indicate that the 

statute prohibits any and all departures onto the lane lines, 

because ORS 811.370 would require that a driver operate 

their vehicle as close to within the lane lines as feasible.

However, the text mandates that a driver operate 

the vehicle within a single lane “as nearly as practicable.” 

ORS 811.370(1)(a) (emphasis added). The statute does not 

define, nor have we previously interpreted, the word “nearly” 

in this context. “In the absence of any evidence to the contrary, we assume that the legislature intended to give those 

words their plain, natural, and ordinary meaning, relying 

on dictionaries that were in use at the time the statute was 

enacted.” State v. Delaurent, 320 Or App 191, 195, 514 P3d 

113, rev den, 370 Or 303 (2022) (citations and internal quotation marks omitted). “Nearly” is defined in relevant part as 

“within a little : all but : almost” and “with an approach to 

completeness or exactness: approximately.” Webster’s Third 

New Int’l Dictionary 1510 (unabridged ed 2002). Those definitions demonstrate that the legislature did not intend to 

require exact compliance with ORS 811.370 at all times. The 

phrase “as nearly as practicable” thus provides flexibility to 

drivers as they attempt to comply with the requirement to 

stay “within a single lane.” ORS 811.370(1)(a).

That interpretation of the phrase “as nearly as practicable” is consistent with the way the Supreme Court has 

interpreted that phrase in the context of other statutes. See, 

e.g., Farmer v. Baldwin, 346 Or 67, 77, 205 P3d 871 (2009) 

(identifying the phrase “as nearly as practicable” as one of 

the key terms indicating that ORAP 5.90 “does not require 

exact compliance”); Hartung v. Bradbury, 332 Or 570, 587, 

33 P3d 972 (2001) (citing the phrase “as nearly as practicable” in ORS 188.010(1) as demonstrating “the flexibility that 
Cite as 326 Or App 788 (2023) 793

is built into the statutes and rules”). It is also consistent 

with the legislature’s policy goals in enacting the vehicle 

code. The purpose of the vehicle code is “[t]o provide maximum safety for all persons who travel or otherwise use the 

public highways of this state[.]” ORS 801.020(11)(a). A driver 

who makes a momentary and minor deviation in crossing or 

touching a lane line is not necessarily creating a safety risk 

with their conduct.

Had the legislature wanted to prohibit any lane 

deviations in the absence of circumstances making compliance impracticable, the legislature could have done so by, 

for example, using the phrase “whenever practicable.” See 

Webster’s at 2602 (defining “whenever” in relevant part as 

“at any or all times that : in any or every instance in which”). 

The legislature knows how to indicate a mandatory obligation. See, e.g., ORS 163.741(2) (“Whenever a stalking protective order *** is served on a respondent, the person serving 

the order shall immediately deliver to the county sheriff a 

true copy of proof of service[.]”); ORS 618.236(1) (“Whenever 

any commodity or service is sold, offered or exposed for 

sale, by weight, measure or count, the price shall not be 

misrepresented[.]”); Preble v. Dept. of Rev., 331 Or 320, 324, 

14 P3d 613 (2000) (“Shall is a command: it is used in laws, 

regulations, or directives to express what is mandatory.” 

(Citation and internal quotation marks omitted.)); Office 

of Legislative Counsel, Bill Drafting Manual 4.4 (18th ed 

2018) (“To impose an obligation to act, use ‘shall.’”).

Our conclusion is reinforced by the fact that construing the statute to allow for some lane deviations gives 

meaning to the word “nearly.” See ORS 174.010 (“[W]here 

there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.”);

Crystal Communications, Inc. v. Dept. of Rev., 353 Or 300, 

311, 297 P3d 1256 (2013) (“As a general rule, we construe 

a statute in a manner that gives effect, if possible, to all 

its provisions.”). If any and all instances of touching a lane 

line would violate the statute, the word “nearly” becomes 

superfluous. See Cloutier, 351 Or at 98 (“[A]n interpretation 

that renders a statutory provision meaningless should give 

us pause[.]”). Therefore, the intent of the legislature is clear 
794 State v. Little

that a momentary and minor lane deviation is not a violation of ORS 811.370.4

We turn to the facts in this case to determine 

whether defendant’s conduct constituted a momentary 

and minor lane deviation, such that he operated his vehicle as “nearly” as practicable within a single lane. The evidence demonstrates that, as defendant was turning to exit 

Highway 380 onto Juniper Canyon Road, his back right passenger tire drove over the fog line by the width of a tire and 

stayed there for approximately 1.5 seconds—a momentary 

and minor crossing over the fog line that the trial court characterized as “de minimis.” Contrary to the state’s contention 

that defendant’s conduct “was no less significant than other 

violations that this court has previously concluded were 

sufficient to support probable cause,” that single, incidental crossing of the fog line is the most minor digression we 

have had occasion to address, when accounting for both the 

number of deviations observed and the safety risk of a given 

deviation.5

 Accordingly, defendant did not fail to remain “as 

4 The policy arguments in favor of limiting officers from stopping citizens 

for very minor traffic offenses have been thoroughly explored in scholarly literature. See, e.g., Harvey Gee, “U Can’t Touch This” Fog Line: The Improper Use of 

a Fog Line Violation as a Pretext for Initiating an Unlawful Fourth Amendment 

Search and Seizure, 36 N Ill U L Rev 1, 2 (2015) (observing that “police are relying on statutes as an excuse to pull over cars which may have only momentarily crossed the fog line and where the drivers have done nothing else unlawful” 

and that this practice “affords police tremendous leeway to conduct pretextual 

stops, unreasonably detain suspects, and unlawfully search vehicles”); Lewis R. 

Katz, “Lonesome Road”: Driving Without the Fourth Amendment, 36 Seattle U L 

Rev 1413, 1413 (2013) (asserting that “[o]ur streets and highways have become a 

police state where officers have virtually unchecked discretion about which cars 

to stop for the myriad of traffic offenses contained in state statutes and municipal 

ordinances”); Melanie D. Wilson, “You Crossed the Fog Line!”—Kansas, Pretext, 

and the Fourth Amendment, 58 U Kan L Rev 1179, 1180 (2010) (noting that data 

from Kansas indicates that Kansas police “rely on minor traffic violations as an 

excuse” to stop certain vehicles and noting that “[r]ecently, officers have relied on 

lane violations” in particular).

5 See, e.g., Husk, 288 Or App at 738 (defendant’s car briefly straddled new 

lane dividing line as lane widened from one lane into two lanes); Rosling, 288 

Or App at 359 (defendant’s tire touched the left lane line before crossing over the 

right fog line); State v. Wentworth, 252 Or App 129, 134-35, 284 P3d 1250 (2012) 

(declining to address defendant’s unpreserved argument that crossing the fog 

line by one or two inches for one or two seconds was too incidental and momentary to satisfy ORS 811.370); State v. Vanlom, 232 Or App 492, 494, 222 P3d 49 

(2009) (defendant’s left tires drove onto double yellow center line and then his 

right tires drove onto fog line three times); McBroom, 179 Or App at 122 (defendant’s tires drifted onto one of the double yellow center dividing lines and stayed 
Cite as 326 Or App 788 (2023) 795

nearly as practicable entirely within a single lane.” ORS 

811.370(1)(a).

Because such a momentary and minor lane deviation is not a violation of ORS 811.370, Durheim did not have 

probable cause to stop defendant for failing to stay within 

his lane, and defendant’s motion to suppress should have 

been granted.6

Reversed and remanded.

there for 300 feet or more); cf. State v. Roberts, 241 Or App 589, 591, 251 P3d 232, 

rev den, 350 Or 574 (2011) (rejecting defendant’s argument that the fog line is not 

a demarcation of a lane such that crossing over the fog lane twice would not be a 

violation of ORS 811.370(1)).

6 The phrase “as nearly as practicable entirely within a single lane” is also 

contained in section 11-309(a) of the Uniform Vehicle Code (2000). While no uniform interpretation of that provision has been adopted across the jurisdictions 

that have enacted it, we observe that our interpretation of that language is consistent with the approaches taken by the courts of several other states. See, e.g.,

State v. Marx, 289 Kan 657, 674, 215 P3d 601, 612 (2009) (reasoning that “[t]he 

express language employed—‘as nearly as practicable’—contradicts the notion 

that any and all intrusions upon the marker lines of the chosen travel lane constitute a violation”); Commonwealth v. Enick, 70 A3d 843, 847 (Pa Super Ct 2013), 

rev den, 624 Pa 671 (2014) (distinguishing from the case before it the statutory 

language requiring motorists to maintain a single lane “as nearly as practicable,” 

because that language “does not foreclose minor deviations”); State v. Prado, 145 

Wash App 646, 647, 186 P3d 1186, 1186-87 (2008) (concluding that the “requirement that automobile drivers remain within a single lane of travel ‘as nearly as 

practicable’ does not impose strict liability” and that “[a] vehicle crossing over a 

lane once for one second by two tire widths does not, without more, constitute a 

traffic violation”); State v. Livingston, 206 Ariz 145, 148, 75 P3d 1103, 1106 (Ariz 

Ct App 2003), rev den (Apr 19, 2004) (determining that the language “as nearly as 

practicable” demonstrates “an express legislative intent to avoid penalizing brief, 

momentary, and minor deviations outside the marked lines”).