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.