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  • Writer's pictureBrian Foley

Houston Criminal Defense Attorney - Failure to Maintain Single Lane, State v. Hardin Opinion

Houston Criminal Defense Attorney - Failure to Maintain a Single Lane Court of Criminal Appeals Decision in State v. Hardin, No. PD-0799-19, 9 (Tex. Crim. App. Nov. 2, 2022).


The Court of Criminal Appeals has finally put to bed an issue that has been a struggle in the criminal defense community for a while. The issue was that prosecutors and police constantly try to pull over defendants for briefly leaving a single lane when the movement was not yet a danger to anyone.



Sheila Jo Hardin, was charged with fraudulent possession of identifying information and forgery of a government instrument. The evidence for these charges was obtained after a traffic stop by a police officer, David Alfaro. Hardin argued that the officer lacked reasonable suspicion to initiate the traffic stop and therefore any subsequent seizure of evidence without a warrant should be suppressed. The trial court agreed and granted Hardin's motion to suppress.

The incident took place on a three-lane highway at around 1:19 a.m. Officer Alfaro had received a "Be on the Lookout" (BOLO) regarding a U-Haul that was suspected of being involved in multiple burglaries and saw the U-Haul parked at a closed KFC restaurant. He followed the U-Haul when it drove away and observed the vehicle briefly straddle the center lane divider shortly after rounding a curve. The U-Haul moved slowly back towards the opposite lane divider while remaining in its lane, but did not veer or dash towards the other lane. Hardin was not driving erratically or speeding and did not hit or come close to hitting anything. Despite this, Officer Alfaro pulled Hardin over.

At the hearing on Hardin's motion to suppress, defense counsel introduced footage from Officer Alfaro's dash camera which showed the U-Haul's right rear tire crossing over the center lane divider for a few seconds but then returning to the center lane. The trial court found that Officer Alfaro lacked reasonable suspicion to stop Hardin for committing a traffic offense and granted the motion to suppress.

The State appealed the trial court's decision, but the court of appeals affirmed the decision. The court held that Hardin's brief and safe straddle of the center lane divider did not constitute a traffic offense, and therefore Officer Alfaro lacked reasonable suspicion to initiate the traffic stop. The court further found that there was no evidence that Hardin's U-Haul was involved in or had evidence of criminal activity and that the BOLO was insufficient to provide reasonable suspicion.


The court upheld the decision of the lower court in a case involving a statute on lane usage. The reason for this decision was based on the two prongs of the statute, which requires drivers to stay "as nearly as practical entirely within a single lane" and to only move from the lane if it can be done safely.


“ Section 545.060(a) provides in relevant 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 State argued in favor of adopting the position taken by four judges in Leming v. State,493 S.W.3d 552, 561 (Tex. Crim. App. 2016) claiming that the failure to maintain a single lane is an offense under § 542.301 of the Transportation Code. However, this position ignores the fact that § 545.060 sets out the elements of the offense. The court in Hardin dispells this argument and basically overrules Leming.


Under this argument, any failure to stay within a single lane would be considered a violation, regardless of the circumstances. Similarly, any movement from a lane in an unsafe manner would be seen as an independent offense.


The Court believed this was misguided and could have significant implications for drivers who find themselves in unexpected or unavoidable situations on the road. The failure to maintain a single lane should not automatically be considered an offense, and it is important that the elements of the offense be evaluated on a case-by-case basis.


The most alarming part of the opinion was in the concurrence. The concurrence agrees with the court's interpretation of Texas Transportation Code Section 545.060(a) and its conclusion to uphold the trial court's ruling granting the motion to suppress. However, the writer separates to observe that the situation appears to be a case of a reasonable mistake of law by the officer who pulled over the defendant. The Supreme Court in Heien v. North Carolina held that an officer's reasonable but mistaken understanding of traffic law could still give rise to reasonable suspicion to justify a traffic stop. The writer notes that the officer's mistake in this case was entirely reasonable, but the state did not raise the mistake-of-law issue in the trial court and therefore, the court cannot now reverse the trial court's ruling. The writer joins the court's opinion while noting that the state could have successfully raised the mistake-of-law argument.


I believe this is a signal to prosecutors around the State that they should be making the argument at the lower court levels in order for the Court of Criminal Appels to approve the doctrine from the Heien case in Texas Courts. However, I believe this would run afoul of Article 38.23 which requires suppression of evidence when the law is violated without this federal exception for reasonable mistakes.


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