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PD-1380-16 03/29/2017

  1. "Does the improved shoulder of a road include the 'fog line?'"
  2. "Alternatively, because the issue whether the improved shoulder includes the 'fog line' is unsettled, is there reasonable suspicion of a violation of driving on the improved shoulder when a driver drives on the 'fog line' but does not cross its outer edge?"
  3. "Is driving on an improved shoulder 'necessary' 'to avoid a collision' under Tex. Transp. Code § 545.058(a)(7) simply because the driver is on a two-lane highway at night with a vehicle traveling in the opposite direction?"

Police stopped the car in which Hernandez was a passenger for twice crossing over the "fog line" onto the improved shoulder. Police did not believe the movements were made to avoid a collision or make a right-hand turn. When the police approached the car, they smelled marijuana and eventually arrested Hernandez for tampering with evidence and possession of marijuana. Hernandez filed a motion to suppress challenging the legality of the stop. As to the first movement, the judge concluded that it was unclear whether the movement exceeded the outer limits of the fog line. As to the second, the judge noted the vehicle was traveling on a two-lane highway at night and therefore concluded that it was a "prudent maneuver" to avoid a collision. The judge granted the motion.

The court of appeals affirmed. As to the first movement, it deferred to the trial judge's finding that the car did not fully cross over the line and held that the movement did not qualify as driving on the improved shoulder. As to the second, the court agreed with the trial judge's determination that the cross-over movement was permissible because it was necessary to avoid a collision and not unsafe.

The State claims that the improved shoulder includes the "fog line;" therefore, as a matter of law, the first maneuver was unlawful because the driver drove on top of the "fog line." Alternatively, the State contends that the stop was supported by reasonable suspicion of DWI.  Because the Court of Criminal Appeals has not yet decided whether the improved shoulder includes the "fog line," the issue is undecided and police therefore had reasonable suspicion of a violation (even if it is determined not to be). Finally, the State argues that both lower courts' interpretation of the scope of "necessary to avoid a collision" is too broad. Taken to its logical end, it would then be permissible for all drivers to continuously hurdle the main traffic lane and fog line or drive entirely on the improved shoulder when traveling at night on a two-lane country road so long as there is oncoming traffic.

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