When Are You Free to Leave a Traffic Stop in Texas?

May 16th, 2018 by Tad Nelson in DWI, Traffic Offenses

For most Houston-area residents, our primary interaction with the police comes during citations for traffic violations. A traffic stop is considered a “detention” by the police, so you need to be careful when attempting to leave the scene, even for just a few minutes. Under Section 38.04 of the Texas Penal Code, you can be charged with a Class A misdemeanor if you “intentionally” evade an officer who is lawfully detaining you.

Texas Man Closes Garage Door on Trooper, Receives Misdemeanor Conviction

Here is an example of how Section 38.04 works in practice. This is taken from a recent Texas appeals court decision arising from a traffic stop in Hale County. On the night in question, a Texas Department of Public Safety trooper observed the defendant’s vehicle making a left turn without signaling first. This is a traffic violation under Section 545.104 of the Texas Transportation Code, and the trooper initiated a stop to give the defendant a ticket.

The defendant was approaching his home at the time, and he entered his driveway when the trooper signaled him to pull over. The trooper informed the defendant of the traffic violation. As is standard procedure, the trooper asked to see the defendant’s driver’s license so he could check it against state records. The trooper asked the defendant to sit in the front seat of the trooper’s patrol car while he checked the license.

During this process, the trooper said he smelled alcohol on the defendant’s breath. The trooper asked the defendant if he had been drinking. The defendant replied he had consumed a “couple of drinks.” The trooper then asked if there were any open containers of alcohol in the defendant’s car. The defendant gave a vague answer, and the trooper asked for permission to search the vehicle.

The defendant refused permission, but the officer said he still intended to search the vehicle. At this point, the defendant said he wanted to go into his garage, where his wife was standing, and ask her to “record the encounter.” The officer said he had “no objection” and allowed the defendant to enter the garage.

But once the defendant was in the garage, he closed the door and refused to come out. Eventually, police arrested the defendant and charged him with a misdemeanor under Section 38.04. A jury subsequently found the defendant guilty.

The Texas Seventh District Court of Appeals upheld the conviction. It noted that the evidence at trial showed the trooper “had not completed the issuance of a warning and was still in possession of appellant’s driver’s license when appellant left.” This suggested that the “lawful detention” of the defendant was ongoing when the officer allowed him to enter the garage. And while the defendant argued the trooper illegally “prolonged” the stop by asking about his drinking–and threatening to search his vehicle without a warrant–the appeals court noted that a police officer only requires “reasonable suspicion” to detain a suspect who may have committed a crime unrelated to the original traffic violation.

Need Help From a Houston Traffic Violations Defense Lawyer?

The lesson here is that once you are pulled over by the police, even for a minor traffic violation, you should treat it as a detention until the officer has returned your license, given you a citation, and expressly stated that you are free to leave. Do not assume you are free to go–and do not volunteer any information that might give the officer reason to extend the detention. And if you need assistance in contesting a traffic citation, call the Law Offices of Tad Nelson & Associates in Houston, Galveston, or League City today at (281) 280-0100.

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