Traffic Offense – Driving On Improved Shoulder…

This is Part Three of a five part series of posts that I began with my April 28th post entitled “Analyzing Traffic Stops” wherein I indicated that I would discuss four specific traffic laws commonly used by law enforcement officers in the Amarillo area to initiate traffic stops. As I mentioned in my April 28th post, the legality of traffic stops are analyzed under the two-prong test set out in Terry v. Ohio.

Under Texas statutory law, it is unlawful to drive on the improved shoulder of a roadway except in limited circumstances. § 545.058 of the Texas Transportation Code provides in pertinent parts:

(a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only:

(1) to stop, stand, or park;
(2) to accelerate before entering the main traveled lane of traffic;
(3) to decelerate before making a right turn;
(4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;
(5) to allow another vehicle traveling faster to pass;
(6) as permitted or required by an official traffic-control device; or
(7) to avoid a collision.

(b) An operator may drive on an improved shoulder to the left of the main traveled portion of a divided or limited-access or controlled-access highway if that operation may be done safely, but only:

(1) to slow or stop when the vehicle is disabled and traffic or other circumstances prohibit the safe movement of the vehicle to the shoulder to the right of the main traveled portion of the roadway;
(2) as permitted or required by an official traffic-control device; or
(3) to avoid a collision.

Many of the cases I defend began as a traffic stop for driving on the improved shoulder of Interstate 40.

Texas courts generally recognize that a law enforcement officer has reasonable suspicion to justify an investigatory stop for driving on the improved shoulder of a roadway if there is no evidence of necessity under one of the specified purposes for driving on the improved shoulder authorized by Section 545.058. State v. Dietiker, 345 S.W.3d 422, 425-426 – Waco 2011, no writ history). See also Tyler v. State, 161 S.W.3d 745, 749-750 – Fort Worth 2005, no writ history).

A law enforcement officer must have probable cause to stop a motorist for a suspected traffic violation. Probable cause is determined by applying the two-prong test in Terry v. Ohio I have discussed in this series of posts on analyzing traffic stops.

During my investigation, I review the arresting officer’s report and the traffic stop video. If these discovery items are inconclusive on the issue of probable cause, then we challenge the stop by filing a motion to suppress evidence. The question often is, did the motorist actually drive on the improved shoulder? As I have said, the State has the burden to prove the officer had probable cause to stop the vehicle. Under Terry, the officer must have had specific, articulable facts that would show a violation § 545.058. Without these facts, the traffic stop would be illegal.

Traffic Offense – Following Too Closely…

This is Part Two of a five part series of posts I began with my April 28th post entitled “Analyzing Traffic Stops” wherein I indicated I would discuss four specific traffic laws commonly used by law enforcement officers in the Amarillo area to initiate traffic stops. As I mentioned in my April 28th post, the legality of traffic stops are analyzed under the two-prong test set out in Terry v. Ohio.

The first statute I want to discuss is § 545.062 (a) of the Texas Transportation Code which states:

An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway.

I regularly see cases where the officer stops a motor vehicle for following too closely in violation of this section. Now you may ask yourself, what does it mean to follow too closely? Based on my reading of § 545.062 (a), a driver commits a traffic offense if, considering the speed of the vehicles, the other traffic on the roadway and the conditions of the highway, he fails to allow enough space between his vehicle and any vehicle he is following, to avoid an accident if he is required to suddenly stop.

Recall that the legality of a traffic stop is determined by the factors relied upon by a law enforcement officer in making the decision to stop the motor vehicle. What the officer saw and his interpretations of his observations are critical to the determination.

When I conduct my investigation in cases governed by § 545.062 (a), the officer generally writes in his report that he stopped the vehicle for following too closely and leaves it at that. Very rarely do I see any mention of the speed of the vehicles, any other traffic on the roadway or the condition of the highway, or even how close the vehicles actually are to one another – all important factors under the statute.

In a case involving § 545.062 (a), the Texas Court of Criminal Appeals, in its Terry analysis, stated: “…specific, articulable facts are required to provide a basis for finding reasonable suspicion. Mere opinions are ineffective substitutes for specific, articulable facts in a reasonable-suspicion analysis.” Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005).

These types of cases are challenged by filing a motion to suppress evidence. At the hearing on the motion to suppress, the State has the burden to prove the officer had probable cause to stop the vehicle. Under the rulings of Terry and Ford, the officer must have specific, articulable facts that show a violation § 545.062 (a). Without these facts, the traffic stop would be illegal. It is important to note that the officer’s opinion that the driver was following too closely is not sufficient to establish probable cause for the traffic stop.

Possession of Marijuana Charge Dismissed…

In October of 2011 one of my clients was arrested in Carson County and charged with the offense of possession of marijuana. She was a passenger in a pickup belonging to and being driven by her boyfriend. The trooper stopped the pickup for speeding and following too closely. According to the trooper, he smelled a strong odor of burnt marijuana when he made contact with the occupants of the vehicle. He also noted in his report that the driver also smelled like burnt marijuana.

The trooper asked the driver to step out of the pickup and go back to the patrol car. While in the patrol car, the trooper told the driver he could smell marijuana in the pickup and then asked the driver if he had been smoking marijuana. The driver admitted he had a small baggie of marijuana in the pickup. The trooper asked the driver if he could search the pickup and the driver denied consent to search.

The trooper then went to the passenger side of the pickup and began to question my client about the purpose of the trip. She told the trooper they had visited her family in Montana. This was the same story the driver told the trooper. My client’s family confirmed this story. The officer then asked my client to step out of the pickup and he began a probable cause search of the pickup. [The trooper had probable to search the vehicle because he smelled burnt marijuana in the vehicle.]

During the course of the search, the trooper found approximately twelve pounds of marijuana in a box in the bed of the pickup. The pickup bed was covered with a locked topper. Both the driver and my client were arrested and charged with possession of marijuana. At this time, my client told the trooper she had hidden the small baggie of marijuana in her bra.

The State dismissed the charges against my client in April of this year.

Factors favorable to my client were: (1) she did not have a criminal history and (2) her boyfriend took responsibility for having the marijuana in the back of his pickup. He also stated that my client did not know it was there. One factor that was challenging for the State was the absence of evidence linking my client to the marijuana found in the box located in the pickup bed.