High court says driving slow not probable cause

The Nevada Supreme Court ruled Thursday simply driving below the speed limit isn't enough reason legally for a police officer to pull someone over.

The evidence in Abraham Rincon's DUI case was thrown out by Washoe Judge Steven Kosach, forcing the district attorney to appeal.

Rincon, who was clocked at 48 mph in a 65 mph zone, was arrested on DUI charges after the stop and, because of prior cases, charged with felony DUI.

The Washoe DA's office argued driving slow below the speed limit is enough probable cause to stop a car and check whether the driver is under the influence. But they also argued the officer testified Rincon crossed the center line and the outside line of the roadway several times.

"After viewing the videotape of the traffic stop, this court concludes that probable cause did not exist to warrant the officer's stop," Kosach wrote.

Rincon's lawyers argued the judge obviously made factual inferences about Rincon's driving and found the officer's testimony he crossed the center lines of the road not credible.

The court disagreed saying there are no findings in the decision to explain why Kosach ruled the stop unjustified.

"We decline to speculate about the factual inferences drawn by the district court," the justices said.

Technically, the district attorney won the appeal because the high court panel of Jim Hardesty, Nancy Becker and Ron Parraguirre vacated Kosach's order. But the court directed the judge to hold an evidentiary hearing, consider both sides of the argument and, this time, issue factual findings supporting its decision on the evidence.

And they directed Kosach to take into account the Supreme Court's ruling that simply driving slow is not enough probable cause to justify an investigative stop.

"There must be additional indicia of erratic driving or unusual behavior before a reasonable suspicion arises justifying an investigative stop," the justices wrote.

And they served notice those written findings "will be entitled to deference on appeal and will not be overturned by this court if supported by substantial evidence."

• Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.