DWI second coming up next week. Officer is dispatched to a vehicle stopped in the middle of the road. Officer heads to location, sees vehicle matching description parked in the roadway. Officer pulls behind vehicle, exits cruiser and approaches vehicle window. Sees D passed out, truck in D, and we're off running.

I can see three possible scenarios here:

1) The officer walking up to the vehicle is a mere encounter, just as any other member of the public could approach a vehicle stopped in the road. No stop, no detention, no reasonable suspicion needed to approach vehicle.

2) Welfare check, based on the vehicle being stopped in the road.

3) Traffic offense, stopping in a roadway - obstruction of a highway.

D atty will do anything to suppress the video, as the kid is very intox. I am also under the impression that the officer testifying to both a welfare check and a traffic infraction is reversible error.

Advice? Lay witness who called in the vehicle is identified in the dispatch logs, phone number given. It has been 4 years and lay witness REALLY doesn't want to come testify. I don't think I need him with the officer seeing the truck in the roadway

What am I missing here strategically? Anything?

It seems to me it would be fine for an officer to say both that it is against the law to park in the middle of the road and that it is also something that might indicate a driver in distress or perhaps DWI.

Personally, I prefer to avoid arguing welfare check because it seems like every time we get an opinion on that, it is not in the state’s favor.

It sounds like you have good facts to argue reasonable suspicion under Derichsweiler, 348 SW3d 906, & Foster, 326 SW3d 609. There was a good article discussing these cases in Texas Prosecutor a while back. Here is a link to the article:

http://www.tdcaa.com/journal/s...evisited-and-tweaked

I think Woodard, 341 SW3d 404, is the authority on consensual encounters in the DWI context. There are some more good cases under section VI. R. of Richard Alpert’s DWI outline on the DWI Resource page.

There is one strange case you should be aware of -- State v. Carter, 2-04-063-CR, 2005 WL 2699219 (Tex. App.—Fort Worth Oct. 20, 2005, pet. ref'd) – where the court focused on the use of emergency lights in its analysis. So, if your cop activated his lights, defense counsel may try to blow up your consensual encounter argument with this case. It’s unpublished, and Woodard was decided after this case by a higher court. And you still have your reasonable suspicion and PC arguments.

Sounds like you should prevail, but Good Luck! anyway.

Read Gonzalez v. State - opinion at the CCA is 369 S.W.3d 851, and supports the community caretaking rationale.

But the better case in my opinion, if you want to avoid the community caretaking argument, is the lower court's ruling in Randall v. State, 2012 Tex. App. LEXIS 4531 (designated for publication but never given a reporter cite for some reason.) That case deals more with consensual encounters, and holds that even with emergency lights activated, it's possible for an encounter like yours to be consensual. PDR was refused with no further rationale given by the CCA.

A SCOTUS decision came out on the very date you posted, seemingly saying that a traffic stop based on an anonymous tip of a traffic violation is valid. Prado Navarette v. California. I haven't read the decision in depth yet, but it appears to say that, so long as the vehicle and offense are described with some specificity by the tipster, stopping the vehicle is permissible under the Fourth Amendment.

I agree that you shouldn't go to "consentual encounter" unless it's really supported on the facts. You've got an unequivocal offense here of obstructing a roadway, the officer has plenty of RAS to detain to investigate that.

I do have one case to add that is on point- Schragin v. State 378 S.W.3d 510 (Tex. App - 2nd Dist 2012). 911 caller reports suspicious vehicle, officer observes it legally parked. However, the officer observed factors that gave RAS of DWI. Schragin is also a great case to have in the back of your head for the purposes of "operating" when you have a sleeping defendant.

Add to that analysis yesterday's SCOTUS opinion in Navarette v. California- a 911 call, even an "anonymous" one, with particularized description of illegal activity and other indicia of reliability is sufficient basis for RAS to conduct and investigative detention.

quote:

I haven't read the decision in depth yet...

It's a crap decision with a crap dissent. Both Thomas and Scalia seem to be willfully ignoring inconvenient things like "facts." They so get in the way of a judicial opinion, don't they? I'm so glad that our judiciary is composed of people who have never sullied their hands with the actual practice of law.

Siiiiiiigh.

The black letter holding is useful for the state, but I wouldn't rely on the analysis for anything other than that black letter holding.

All good discussions of law but I leave one word of advice. If your are being charged by a rabid grizzly bear, and have a gun with 5 rounds in it, which round do you pick?

Same answer for which justifiations do you raise on the record. The defense lawyer and appellate courts are both rabid, shoot them repeatedly.

And that right there is why I love working with Clay! Brilliant analysis.

REASONABLE SUSPICION is your friend, here!

I agree with Clay. There's no reason not to raise all the possible justifications. Sure, you can focus on one or two that you think is the most important, but at least raise the others briefly. You never know which the court (trial or appellate) will seize on.

But if it is a rabid rabbit, use the holy hand grenade.