Matthew's Foray into Blogging

Wednesday, September 27, 2006

Learn Something New Every Day

In law school criminal procedure courses, students learn that the Fourth Amendment of the Constitution requires that police have “probable cause” to arrest, that is, facts that support that a person committed a particular crime. Law students also learn that police can make an “investigative detention” based on a lesser standard – “reasonable suspicion,” that is, facts and inferences that would lead a reasonable officer to believe that a crime is afoot. Additionally, all arrests must be reasonable, per the Fourth Amendment. If an arrest is made pursuant to a warrant, it is reasonable, but there are numerous exceptions to the warrant requirement.

Applied to a real-life scenario, this means that the police cannot randomly pull people over on the roads to determine whether they are Driving while Intoxicated. The authorities cannot even wait outside bars to pull over the patrons as they depart the drinking establishments. Rather, reasonable suspicion to stop must exist. Reasonable suspicion to stop amounts to a violation of a traffic law, such as speeding, or a license plate light being out. When the officer approaches the vehicle, and smells the strong odor of alcoholic beverage, notices the slurred speech, and the glassy, bloodshot eyes, the officer can administer standardized field sobriety tests, and ask the suspect to submit to a breath test (all of which the citizen can and should refuse). If the officer determines that the person is operating a motor vehicle in a public place while not having the normal use of mental or physical faculties by reason of the introduction of alcohol or any other substance into the body, or the person has an alcohol concentration of 0.08 or more, probable cause to arrest exists.

A useful statute for providing the reasonable suspicion is Texas Transportation Code § 545.060, entitled “Driving on Roadway Laned for Traffic,” which provides, in part, “(a) An operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely.” The officers will cite this variously as “Fail to drive in single lane,” “Fail to maintain lane,” “Changes lanes when unsafe,” or some variation thereof. Essentially, this is a means to make a traffic stop because a driver is weaving on the road. However, a Texas case that is a great boon to lawyers whose clients who are charged with Driving while Intoxicated exists: State v. Huddleston, 164 S.W.3d 711 (Tex. App.–Austin 2005). Huddleston holds that, essentially, weaving, by itself, is not sufficient. Rather there are two parts to the statute: (1) there must be a lane change, and (2) the lane change must be unsafe. At a suppression hearing n Huddleston, the officer testified that Ms. Huddleston never crossed the fog line (that solid stripe on the right side of the road) in an unsafe manner. The court held that witnessing Ms. Huddleston safely cross the fog line five times over a stretch of six miles did not give the officer a reason to suspect that she was unsafely failing to remain in a single lane in violation of § 545.060.

Following is what I learned most recently. We had a client who was charged with DWI. A Motion to Suppress was filed because the reason for the stop was nothing more than crossing the fog line. A suppression hearing was set. At a suppression hearing, the defense has the burden of proving that an arrest was made without a warrant. Thus, the defense has the first go at whatever witness it wishes to call, usually the arresting officer, in a DWI case. At the outset, the prosecution will offer to stipulate that the arrest was made without a warrant. Many defense attorneys will agree to stipulate that a warrantless arrest was made. At this point, the defense has met its burden. The burden shifts to the prosecution to prove that, although there was no warrant, the arrest was reasonable. The State now has the opportunity to call its witnesses of choice, without the defense having conducted direct examination of the arresting officer. Now, the prosecution calls the arresting officer to the stand, and essentially says, “Officer, tell me how recklessly the defendant was driving!”

Cleverly, at this suppression hearing, my employer refused to stipulate that the arrest was made without a warrant. This caught the prosecutors off guard. Thus, the defense still had the burden of proving that the arresting officer did not have a warrant, as a result of which, my employer had the opportunity to have the first shot at questioning the arresting officer. It was elicited that our client’s crossing of the fog line was hardly unsafe. There was no violation of § 245.060, and thus no reasonable suspicion to stop. Good bye, DWI.

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