Date: Wednesday March 11, :56 From: These cases should help:

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Katherine Anthony
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1 Date: Wednesday March 11, :24 From: I am looking for a case involving a DPS stop on a 2 lane highway. The reason the officer gave for stopping him was "you are swerving all over the road". The coban shows not quite 3 minutes. There was weaving between the center stripe (never touched) and the shoulder stripe. At the almost 3 minute mark he never completely crossed the shoulder stripe but when he got on the stripe the DPS officer immediately turned on his emergency lights. Client signaled and pulled off the road and stopped. This occurred at 4 a.m. in the morning. During the next 15 minutes only 3 vehicles passed the stopped vehicles. No vehicles were met nor any others followed prior to the stop. I read a case a while back that was very similar to this case involving not crossing the stripes, and not creating any danger, was an invalid stop, but I cannot find it for the life of me. Can anyone give me a lead on that case so I can find it. Date: Wednesday March 11, :32 From: jimshaw@jimshawlaw.com driving on a stripe... is that "failure to maintain a single lane"... I think not. Jim Shaw, Attorney 916 W. Belknap Street Fort Worth, Texas Date: Wednesday March 11, :34 From: info@michaelrayharris.com Options: reply quote print delete message show original I remember convincing a judge to grant a motion to suppress several years > ago based on a similar set of facts. Yet I don't remember to case name or > cite. > > Michael Ray Harris Date: Wednesday March 11, :56 From: eaepc@swbell.net These cases should help: State v. Houghton, No CR, 2012 WL (Tex.App. Fort Worth 2012) (not designated for publication).

2 This case involves an appeal of a Trial Court's ruling that the officer had no reasonable suspicion to stop Defendant based upon testimony at hearing and video recording. State failed to establish that Defendant's crossing solid white stripe as part of her vehicular movement into left-turn lane provided officer with reasonable suspicion or probable cause to stop defendant's vehicle. Although Defendant's vehicle crossed solid white stripe that marked the right boundary of the left-turn lane, Defendant signaled a lane change, moved her vehicle into the left-turn lane, and waited for an approaching car to clear the intersection before turning left and there was no testimony at the hearing that this was done in an "unsafe manner." Fowler v. State, 266 S.W.3d 498 (Tex.App. Fort Worth 2008). The defendant s vehicle crossing one time into adjacent lane by tire s width when there was no other traffic in area did not constitute sufficient basis for traffic stop. The officer also testified that he did not find the driving unsafe but thought it violated Transportation Code. The Court held that an officer s honest but mistaken understanding of the traffic law which prompted a stop is not an exception to the reasonable suspicion requirement. There is also no mention in the record of the officer s suspecting the driver was intoxicated. State v. Huddleston, 164 S.W.3d 711 (Tex.App. Austin, 2005). Officer observed suspect vehicle pull out from the bar s parking lot and proceed at and within one-and-a half miles of the bar, observed it drift twice to the right side of the roadway and cross over the white shoulder stripe, or fog line. The then activated video shows that the right wheels of the car crossed the fog line three more times during the next three minutes. He never saw the vehicle cross the yellow line separating the two lanes of traffic. He further testified the movements individually were neither unlawful nor unsafe, but the combined number did make them unsafe. Sole basis raised for the stop was failure to stay within a single marked lane. Only after Motion to Suppress was granted did State offer other justifications for the stop: reasonable suspicion of DWI and community caretaking, but these were deemed untimely and therefore waived. Therefore, the Court holding that the officer had no reasonable suspicion to make the stop was upheld. Bass v. State, 64 S.W.3d 646 (Tex.App. Texarkana 2001, pet. ref d). Observation that the defendant was swerving within his lane and crossing over the lane marker did not provide sufficient basis for a traffic stop. Though the State argues that the officer was stopping the defendant based upon a traffic offense, the Court points out that the

3 officer in this case never testified that the lane change occurred in an unsafe manner nor did the record show how many times he had crossed over the lane marker. State v. Cerny, 28 S.W.3d 796 (Tex.App. Corpus Christi 2000, no pet.). This is a State s appeal of the trial judge s granting a motion to suppress. Defendant was observed by the officer swerving across the center lane divider and swerving over the white shoulder line three times. The Court upheld the suppression based upon the lack of testimony that the lane change was in an unsafe manner. The Court also noted that it will give deference to a trial judge s ruling. State v. Arriaga, 5 S.W.3d 804 (Tex.App. San Antonio 1999, pet. ref d). In a DWI investigatory detention, drifting within the lane does not give rise to reasonable suspicion to pull over. Under the totality of the circumstances, the officer must have more facts which lead him to intoxication. For example, just pulled out of a bar and the time of night. The officer offered no evidence to show that he believed the defendant to be intoxicated. Although mere weaving in one s lane of traffic can justify an investigatory stop when the weaving is erratic, unsafe, or tends to indicate intoxication or other criminal activity, nothing in the record indicated that the arresting officer believed any of the above to be the case. State v. Tarvin, 972 S.W.2d 910 (Tex.App. Waco 1998, pet. ref d). Where evidence at Motion to Suppress was that officer observed defendant weaving within his lane and there was no testimony that officer found said driving to be erratic, unsafe or tending to indicate intoxication, trial judge was correct in suppressing the stop. In essence the evidence didn t rise to the level necessary to support stop under Texas Transportation Code (a). See also Ehrhart v. State, 9 S.W.3d 929 (Tex.App. Beaumont 2000,reh. overruled). Hernandez v. State, 983 S.W.2d 867 (Tex.App. Austin 1998, pet. ref d). A single instance of drifting across a traffic lane does not give an officer reasonable suspicion to pull the car over unless it was dangerous to do so. For example, on a four lane highway with no traffic around. Danny Easterling

4 Date: Wednesday March 11, :09 From: State v. Gendron, Tex: Court of Appeals, 8th Dist ( Quoting some helpful points from it: "Improperly crossing a lane is prohibited by TEX.TRANSP.CODE ANN (a)(West 2011). The provision requires a driver on a roadway with clearly marked lanes to "drive as nearly as practical entirely within a single lane" and "not move from the lane unless that movement can be made safely." Id. To prove one violates this provision, its text requires the State to show that a lane line encroachment creates an unsafe situation. In Hernandez v. State, a police officer stopped the defendant after observing him "drift" eighteen to twenty-four inches from the right lane into the adjacent left lane of traffic. 983 S.W.2d 867, (Tex.App.-Austin 1998, pet. ref'd). The court rejected the State's argument that the facts available to the officer gave rise to a reasonable suspicion that the defendant had violated Section (a). Id. at 870. The State failed to show that Hernandez's movements were unsafe or dangerous. Id. at There were very few vehicles around, and Hernandez did not cause any problems for any of them. Id. at 868. The officer felt that the lane change was unsafe only because he was concerned about the driver's well-being. Id. But based only on the "drift" across the lane line, the court concluded "[w]e cannot turn a blind eye to common sense and experience. There are myriad reasons why the wheels of a vehicle might drift slightly across a lane marker a single time." Hernandez, 983 S.W.2d at 870. The officer admitted that the lane change was the only reason for the stop.[5]"... "This same requirement of some evidence of danger to the driver or others has been accepted by other courts, and its absence has resulted in the ensuing stop being found improper. Fowler v. State, 266 S.W.3d 498, 499 (Tex.App.-Fort Worth 2008, pet. ref'd)(no reasonable suspicion to stop vehicle at 12:25 a.m. that drifted over lane line by one tire width once and touched the lane line two other times); Eichler v. State, 117 S.W.3d 897, 898 (Tex.App.-Houston [14th Dist.] 2003, no pet.)(holding no reasonable suspicion when car crossed lane line on interstate in light

5 traffic at 12:30 a.m.); Bass v. State, 64 S.W.3d 646, 651 (Tex.App.-Texarkana 2001, pet. ref'd)(no reasonable suspicion to stop defendant who swerved within his lane line, and crossed it some unknown number of times over two to three mile stretch); State v. Cerny, 28 S.W.3d 796, 799 (Tex.App.-Corpus Christi 2000, no pet.)(holding no reasonable suspicion to stop defendant existed when car "just barely" swerved onto shoulder of lane of oncoming traffic, then crossed over shoulder line three to four times); State v. Arriaga, 5 S.W.3d 804, 807 (Tex.App.-San Antonio 1999, pet. ref'd)(van drifting toward center divider but within lane two to seven times near nightclub around 1:50 a.m.); State v. Tarvin, 972 S.W.2d 910, 912 (Tex.App.-Waco 1998, pet. ref'd)(holding no reasonable suspicion existed when car drifted over outside shoulder line two to three times at 2:00 a.m. near nightclub)."... "We cannot say that a vehicle crossing a divided lane line on a single instance, and touching the lane once, when there are no other vehicles documented on the video, constitutes the kind of indisputable visual evidence of dangerousness which might justify overturning the trial court's application of disputed facts to the law." Naval H. Patel Date: Wednesday March 11, :12 From: camchada@swbell.net Thanks for your responses. I think I have the prosecution on the "ropes" on this one. With kindest regards, I remain Very truly yours, Randy Wilson Date: Wednesday March 11, :23 From: willie@sbylaw.com I like to think Hernandez is the "leading case" because it was mine and David Schulman's. It's been whittled down somewhat but still good law and fits your facts. In fact, as you describe them your facts are better. WILLIE SCHMERLER

6 Date: Wednesday March 11, :31 From: Thanks! You guys are fantastic and a credit to our organization! With kindest regards, I remain Very truly yours, Randy

CHAPTER 313 Traffic Control Devices

31 CHAPTER 313 Traffic Control Devices 313.01 Obedience to traffic control 313.07 Unauthorized signs and devices. signals, hiding from view, 313.02 Through streets; stop and advertising. yield right-of-way