Is Touching the “Fog Line” a Traffic Violation in Texas?

February 7th, 2018 by Tad Nelson in Traffic Offenses

Houston-area police are always on the lookout for potential traffic violations that may justify stopping a driver. But sometimes the police interpret the traffic laws of Texas in an overly aggressive manner. So just because an officer insists there was a violation does not make it legally correct.

Court Rejects Drug Arrest Based on Incorrect Interpretation of Traffic Law

The Texas Court of Criminal Appeals recently weighed in on the subject of when a driver commits a traffic violation by “touching” the fog line–that is, the solid white line separating the roadway from the shoulder. While the state’s highest court for criminal matters normally would not intervene in such a routine traffic law dispute, this particular case involved a defendant facing serious jail time, as the stop ultimately led to drug charges.

What happened was this. A Texas State Trooper observed a minivan traveling down Interstate 40. The officer claimed he saw the minivan illegally driving on the shoulder at least twice. Based on this, the trooper initiated a traffic stop, which then led to a search of the vehicle, whereupon drugs were discovered. The driver of the minivan was arrested and charged accordingly.

All three Texas courts that reviewed this traffic stop–the trial court, the intermediate appeals court, and the Court of Criminal Appeals–held the trooper’s actions in this context were illegal. As the Court of Criminal Appeals explained, there were three basic problems here. First, based on footage obtained by the trooper’s own dashboard camera, it was “not clear” that the defendant ever touched the fog line as the officer testified.

Second, even if the defendant did inadvertently touch the fog line, he did not commit a traffic violation. The Texas Transportation Code never mentions the fog line. What Section 545.058  actually says is that a person may drive on the “improved shoulder” of a public road only in certain situations. At trial, the trooper testified he interpreted the law to include the fog line as part of the “improved shoulder.” But looking at the “totality of the circumstances,” the Court of Criminal Appeals said that was an incorrect interpretation. While the Court declined to “establish a definitive rule regarding whether every fog line” is part of the shoulder, the justices said a common-sense application of the law would not hold a driver commits a traffic violation by incidentally touching the line without further evidence of unsafe driving.

Finally, even assuming the driver “crossed” the fog line onto the shoulder, as the trooper testified, the defendant’s actions were still permissible under Section 545.058. It is acceptable for a vehicle to enter the shoulder in order to “allow another vehicle traveling faster to pass.” In this case, the driver touched the fog line because he assumed the trooper was trying to pass him. So the trooper’s own conduct rendered the defendant’s conduct legal.

Need Help Fighting a Traffic Ticket?

Police officers sometimes make honest mistakes when it comes to interpreting traffic laws. This is why you should always speak with an experienced Houston traffic violations defense attorney even if you are just facing a ticket. Contact the Law Offices of Tad Nelson & Associates in Houston, Galveston, or League City by calling (281) 280-0100 if you need assistance today with a traffic violation or a more serious criminal charge.

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