Written by Gregory Monte.
This post is a follow up to last week’s discussion about whether a motorist can get a ticket for hanging an air freshener from his rear-view mirror – A Traffic Ticket for Hanging an Air-Freshener Off Your Rear-View Mirror?
After reviewing many court decisions, it appears that there is really only one possible way to fight a ticket of this sort. You need to hope that the cop doesn’t properly specify that the object hanging from the rear view mirror actually obstructed your view.
To support this claim, I quote from a variety of different state court decisions so that you get an idea of how widespread this defense approach appears to be.
State v. Barrow, 975 A. 2d 539 – NJ: Appellate Div. 2009 – The only thing that a police officer has to do is “provide articulable facts showing that he or she reasonably believed that an object hanging from a rearview mirror obstructed the driver’s view … [Officer] Wittke testified that he believed the swaying boxing gloves ‘obstructed’ the driver’s view.”
State v. Thompson, NJ: Appellate Div. 2017 – “Here, the officer never testified that the object he saw obstructed defendant’s view in any manner. The officer told the court he believed the object was a Christmas tree air freshener. Defendant claimed it was his grandmother’s handicap parking placard. The judge did not resolve the discrepancy … we think it evident the State failed to carry its burden on this point.”
People v. Bookman, 131 AD 3d 1258 – NY: Appellate Div., 2nd Dept. 2015 – “With respect to the purported violation of Vehicle and Traffic Law § 375 (30), it was necessary for Police Officer Sparks to testify that the sandal and/or necklace either obstructed or interfered with the driver’s view or that the sandal and/or necklace prevented the driver from having a clear and full view of the road. However, Police Officer Sparks did neither.”
State v. Cyrus, 1 A. 3d 59 – Conn: Supreme Court 2010 – “The trial court recognized that there must be more than a hypothetical possibility that the driver’s vision would be obstructed or that he would be distracted to constitute a violation of § 14-99f(c). Mattioli … must have been able to articulate this reasonable belief to the court … Because Mattioli’s testimony provided no such facts, he did not provide any basis to persuade the court that he had believed that the hanging cross obstructed the defendant’s view …”
People v. White, 107 Cal.App.4th 636, 642, 132 Cal.Rptr.2d 371 (2003) – “… because officer stopping vehicle never had testified that he believed air freshener hanging from rearview mirror obstructed driver’s view, or to alternative facts that would suggest driver’s view was impeded, there was no objectively reasonable and articulable basis to stop vehicle”
People v. Arias, 159 P.3d 134, 138-39 (Colo.2007) – “… motor vehicle stop was unjustified because officer had not testified as to how hanging air freshener obstructed driver’s view, including how object was displayed or angle of vision that was obstructed”
People v. Cole, 369 Ill.App.3d 960, 969, 314 Ill.Dec. 171, 874 N.E.2d 81 – “… motor vehicle stop was unjustified because arresting officer had not testified how hanging object materially obstructed driver’s view”
The Square Inch Rule?
Notice in that Illinois decision that the phrase “materially obstructed” is used. One possible way to convince a judge that your windshield was not obstructed materially is to measure the size of the hanging object and compare it to the size of the windshield itself.
I found a reference to this “square inch rule” in a Massachusetts decision called Commonwealth v. Brazeau, 64 Mass.App. 65, 831 N.E.2d 372 (2005), but I’m not sure how useful this defense might be in any other state.
“… the items that had served as the basis for the motor vehicle stop in question were two small wooden hearts and one plastic diamond shaped object … To put their size into perspective, the vehicle’s windshield was approximately sixty inches wide and forty inches tall, or in the vicinity of 2,400 square inches. The [police] officer acknowledged that the total area of the clustered items was only about one inch square … The Massachusetts Appeals Court determined that the officer did not have a particularized and objective basis for suspecting a traffic violation … “