I have several officers using Driving on Improved Shoulder instead of Failure to Maintain a Single Lane as the reasonable suspicion for stops....the problem may be that in my county, the only large shoulder would be on Hwy 59. Other highways around here tend to only be a few feet wide. Judge indicates if stop is made on a highway with one of these smaller shoulders, a motion to suppress will be granted. Anyone have any caselaw or insight into this?? I couldn't find anything that defines it except to say that it is paved (which doesn't help at all!)
Does it matter what the officer's stated reason is? If the facts actually show failure to maintain a single lane, the argument would be that the officer could have pulled him over for that. Ya know, as in the officer's subjective intent is irrelevant, etc.
Of course, the judge may not believe the facts, but that's a different story. . . .
The issue would be that it's easier to prove Driving on Improved Shoulder because you don't have the "unsafe" element. I live in a small county where late at night on these country roads there is usually little to no traffic, so proving that failure to maintain a single lane is unsafe is a little tough.
There are several cases out there which establish that even the momentary crossing of the fog line to the right hand edge of the road constitutes the offense of "Driving on an Improved Shoulder." There is no requirement that the improved shoulder be so wide that the suspect vehicle is traveling alllll the way over the shoulder as though it's a lane of travel. State v. Dietiker, 345 S.W.3d 422 (10th Ct. App. 2011); McClish v. State, 2006 Tex. App. LEXIS 7927 (7th Ct. App.)
BUT!!! Be careful. It seems as though the CCA has read in an "unsafe" requirement where none exists. Lothrop v. State, 372 S.W.3d 187 (CCA 2012) Bad facts made bad law here, as the trooper and prosecutor didn't make clear enough that the statutory exceptions didn't apply. I would go step by step with your officer and ask whether the suspect's vehicle was doing each and every one of the exceptions.
Thanks Brody. I've read most of those cases, and I tend to agree with them. I just wanted to see if there was a single case out there that defined "improved" shoulder vs. just a regular shoulder (if there is a difference). Like you said, I don't want to make bad case law. And I'm afraid my Judge will rule against me.
I would think that any kind of paved area would count as "improved." Something other than just dirt on the side of the road. I'm not aware of any definition of it, though. Good luck!
The full definition from the Transportation Code
Sec. 541.302. TRAFFIC AREAS. In this subtitle:
(6) "Improved shoulder" means a paved shoulder.
(15) "Shoulder" means the portion of a highway that is:
(A) adjacent to the roadway;
(B) designed or ordinarily used for parking;
(C) distinguished from the roadway by different design, construction, or marking; and
(D) not intended for normal vehicular travel.
Additionally, there are some circumstances during which driving on the improved shoulder is permitted. They are specified here:
545.058. DRIVING ON IMPROVED SHOULDER
Hope this helps.
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