More Rules of the Road: Passing on the Shoulder is A-Okay

It appears that the Texas Court of Criminal Appeals is also becoming the State’s highest traffic court.  Last week, I posted about a CCA case involving merging traffic.  This week, the CCA issued an opinion on the legality of using the right shoulder of a road to pass a slower vehicle.

In Lothrop v. State, the Appellant was pulled over after a police officer observed him using the right shoulder of the road to pass a vehicle that was slowing down.  Appellant was later arrested for Driving While Intoxicated.  At trial, he filed a motion to suppress the evidence gained from the stop, arguing that the police officer did not have reasonable suspicion to make the stop.  Appellant pointed to Section 545.058(a) of the Texas Transportation Code, which provides:

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

     (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.

The trial court denied the motion and Appellant pled guilty to DWI.  The 2nd Court of Appeals (Fort Worth) affirmed the conviction, holding that “driving on an improved shoulder, regardless of circumstance, is prima facie evidence of an offense, and that Section 545.058(a) merely establishes defenses that a defendant may raise at trial.”

Think again, said the Traffic Court (a.k.a. CCA):

[T]he offense of illegally driving on an improved shoulder can be proved in one of two ways: either driving on the improved shoulder was not a necessary part of achieving one of the seven approved purposes, or driving on an improved shoulder could not have been done safely.  Merely driving on an improved shoulder is not prima facie evidence of an offense.  Thus if an officer sees a driver driving on an improved shoulder, and it appears that driving on the improved shoulder was necessary to achieving one of the seven approved purposes, and it is done safely, that officer does not have reasonable suspicion that an offense occurred. 

With that, the CCA reversed the Court of Appeals and remanded the case back to the trial court.  So there you have it - traffic lesson number two from the CCA this month.  You are free to drive on the improved shoulder of the road (without worrying that you will be pulled over) IF you are doing it safely and for one of the seven listed purposes.

Judge Johnson concurred, noting that driving on the right should at or near a railroad crossing is typically unwise.

Lane Ends, Merge Left

Back in 2010, I posted about Mahaffey v. State, a case in which the CCA directed the 12 District Court of Appeals (Tyler) to determine whether a "lane merge" is a "turn" under the Texas Transportation Code, such that it requires a driver to signal.  If a "merge" does not require a turn signal (as the appellant failed to do in this case), then the police stop was improper (without reasonable suspicion) and the evidence of his DWI gained from the stop should have been suppressed.

The 12th Court took another look at the case and once again determined that a "merge" was a "turn" and thus required a turn signal.  Apparently, the 12th Court did not get the CCA's hint the first time around.

In a 5-3 opinion (HERE) with Judge Meyers concurring, the CCA reversed (again), holding:

We disagree with the State's contention that the termination of a lane does not affect whether a driver changes lanes under the signal statute.  As a practical matter, "changing lanes" requires the existence of more than one lane: In order to change lanes from Lane A to Lane B, Lane A must exist.  Appellant did not change lanes.  The two lanes became one. ...[N]o signal is required when two lanes become one. 

Presiding Judge Keller dissented and was joined by Judges Price and Keasler.  She would hold that because Appellant's lane ended, he had to change lanes, and that changing lanes requires a turn signal.

Well, it looks like logic prevailed in this one.  You cannot change lanes if there is only one lane in which to drive.  The majority got it right here.  No signal is required for a lane merge.  Remember that if a police officer tries to pull you over for failing to signal.

Fighting a Traffic Ticket: The Truth Revealed

With most people, misconceptions and misunderstandings guide their decisions when deciding whether or not they should fight a ticket. Below is some advice from a former prosecutor...

1) You're not the only one that thinks you can just "talk to a prosecutor" and get your ticket dismissed.
Two to three times a week, most courts hold conferences between the prosecutor and citizens who had received citations. During these conferences, most people go to the prosecutor immediately to ask for a dismissal on their citation. I would venture to say that in a metropolitan area, a municipal prosecutor gets asked for a dismissal between 25-50 times per week. Starting your conversation off with a prosecutor by asking for a dismissal is the least effective approach for negotiating a favorable result. The concept of a dismissal is WIDELY misunderstood and the bottom line is that dismissals are rare.

2) Instead of demanding your dismissal, start by pointing out legitimate issues with your ticket.
There are legitimate issues with citations. Those issues can result in dismissals. But for every one legitimate issue, there are one-hundred ridiculous excuses. A municipal prosecutor has heard them all and there is a really good chance that the prosecutor has heard your specific excuse many, many times. Most of the time, people come go to court with an assumption about the law and they hang on to it with everything they are worth. Do some research before coming to court to determine whether you have a "legitimate issue" or just "another excuse". Whether that means consulting with an attorney or jumping onto Google, come to court with a little research and you may actually put the prosecutor in a better mood.

3) Document your defense.
 If you have documentation (especially on vehicle equipment issues, inspections, registrations, licenses, and insurance), bring it to court and have it ORGANIZED and ready for the prosecutor to look at. If there is some legitimate discrepancy between the status of your vehicle or license (on the date of the citation) and the citation you received you might actually get that all-elusive dismissal, but you had better have documentation to support your defense.

4) "Fine, I'll take it to trial."
It's got a nice ring to it, but the reality of a trial is that most cases will come down to the officer's testimony versus the defendant's testimony. More than likely, the officer will testify that he's been an officer for multiple years, been through training and education specifically for observing and enforcing traffic violations. He'll also testify that he spends 90% of his 8-10 hour shift in and amongst traffic observing traffic and that he was focused solely on looking for your vehicle violating a traffic law. Meanwhile, you'll testify (if you choose to testify) that you're number one priority was not following the traffic laws (I dare you to say that it was), but that you were on the way to work, dropping kids off at school, going to the grocery store or had some other objective in mind. The bottom line with trial: The officer will testify that he observed you commit a traffic violation and you'll testify you didn't and the judge or jury will decide who they believe.

5) If you really want a chance...
..hire an attorney. He or she will analyze your citation based on current law and the rules of evidence and procedure and not just based on what you heard from your neighbor's friend's ex boyfriend. Ultimately, you may decide that hiring an attorney would cost more than it is worth, but it you really want a fighting chance, you should hire an attorney.

Attention TX Drivers: Your Front License Plate Must Be Displayed...

"...at the foremost area of your car, most commonly the front bumper."

The Texas Court of Criminal Appeals seized the opportunity in Spence v. State to settle a split between the Texas Courts of Appeals regarding the proper placement of the front license plate.  The Amarillo Court of Appeals (7th), in Spence, had previously determined that the license plate was required to be displayed on the front bumper (the foremost area of the vehicle).  However, the Austin Court of Appeals (3rd), in State v. Losoya, 128 S.W. 3d 413 (Tex. App.--Austin 2004, pet. ref'd), held that Texas Transportation Code did not require the license plate on the font bumper.

Well, now it is settled.  The high court has spoken.  For those Nascar fans out there, go take down your Dale Earnhardt or you confederate flag decorative plate before you get a ticket! 

Attention Texas Drivers:  Your front license plate MUST be displayed on the foremost part of your vehicle, (i.e. Your front bumper).

Judge Meyers dissented, pointing out that the CCA is applying the Code inconsistently by requiring the front license plate to be displayed on the front bumper, but allowing the rear license plate to be displayed on the truck or back hatch of the vehicle and not on the rear bumper.  She "would construe the front and rear to mean any surface facing that direction."

Rules of the Road: CCA Opines on the Turn Signal Requirement

A recent Texas Court of Criminal Appeals opinion assures us that the CCA considers no issue too-small in the Texas criminal law landscape.  I did somewhat of a double-take when I read the issue presented in Mahaffey v. State:  

Is merging without using a signal a traffic violation under the Texas Transportation Code?

Why does that matter, you ask?  Because Appellant was arrested for DWI after an officer pulled him over for failing to signal when he merged into the left lane as his traffic lane was ending.  If a "merge" does not, in fact, require a signal, then there was no legal basis for the stop and the evidence of DWI should have been suppressed at the trial court.

The lower court (12th Court - Tyler) held that a "merge" is a "turn" and as such, requires a signal under the Texas Transportation Code section 545.103.  The CCA disagreed, stating:

the Tyler court’s holding in this case leads to an absurd result: a requirement that a driver must signal any movement that is not a perfectly straight trajectory. 

Nowhere does the [Texas Driver's Handbook] say that a driver must signal when a lane merges into another lane.

Accordingly, the CCA remanded the case back to the 12th Court to determing whether a "merge" (not a turn) requires a signal.