Texas 9th Court of Appeals Opinion – June 1, 2011

The 9th Court of Appeals released 1 opinion today, a memorandum opinion concerning a Montgomery County criminal case:


The 9th Court of Criminal Appeals affirmed the Montgomery County Court at Law #5’s denial of the defendant’s motion to suppress evidence prior to trial for DWI. At the suppression hearing the arresting officer testified that appellant did not maintain a single lane of driving and swerved/drifted onto the shoulder without indicating and without apparent purpose. The trooper testified that appellant was not a danger to any other persons on the seven lane road.

The Court found, on the only issue, that the Trooper did have reasonable suspicion to stop the vehicle since the state met its burden of proof that a violation had or was about to occur under 545.058 of the Transportation Code. Since the Trooper had reasonable suspicion to stop the vehicle, the evidence from the stop cannot be suppressed.

The Appellant argued that the section of the Transportation Code he allegedly violated, crossing a “fog line” onto an improved median, has several exceptions if a necessity arises (an example exception: “(5) to allow another vehicle traveling faster to pass”), and that because the State did not negate those exceptions, reasonable suspicion for the traffic stop did not exist, and a violation of the 4th Amendment occurred.

This Court favorably cites State v. Dietiker, No. 10-10-00277-CR, 2011 Tex. App. LEXIS 239 (Tex. App.—Waco Jan. 12, 2011, no pet.) (not yet released for publication), which deals with the same basic facts and states “the State . . . was not required to negate necessity or the statutory exemptions in order to establish reasonable suspicion. This is because necessity, safety, and the statutory exemptions are more in the nature of defenses rather than exceptions.” Id. The Court thus informs us that to defend a charge related to this section of the Transportation Code, a defendant is required to show evidence that a necessity to cross the “fog line” arose, and that it was for one of the reasons listed in the statute. The same is required when, as here, a motion to suppress is predicated on one of those exceptions.

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