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DWI Arrest in Texas – How does probable cause work?

Stockdale, TX |

It seems like an officer can pull you over for something as small as drifting onto a lane marker. If that’s the case, how do DWI’s get dismissed? Does the judge decide? Does the judge look at video or the report to make their decision?

I've also read that many DWI cases have been dismissed because of probable cause, due to a motion to suppress. How does this work?

I've done a lot of reading and I know that many DWI’s are challenged on the officer’s probable cause for the initial traffic stop. From what I've read, it seems that probable cause can be something as simple as drifting onto (not even across) the lane marker, or an unsafe lane change. In my case, I exited the freeway and went across the lanes to the far right.

Thanks in advance for your time.

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Attorney answers 3

Posted

"Probable cause" is pretty much in the eye of the beholder. Cops don't think that the standard is very high, and many Texas judges agree. There are situations where even the best judge would find probable cause for drifting across a lane indicator, such as crossing a double line. However, many judges would not find that alone to be enough in the typical situation.

The law recognizes that the cop has a burden to show that such action was unsafe or that it violates a specific law (such as the double line prohibition). Was your freeway exit controlled by a double white line? Obviously, a drift across a lane marker would be hazardous in a fast, crowded boulevard, but not so on the same highway in the lonely time of early Sunday morning.

So, bottom line, your research is wasting your time, because the complexity of the law in this area is hard for even experienced criminal lawyers to understand and apply to each specific fact situation. It’s time for you to gather up photos, maps and drawings so that an experienced lawyer can advise you. I have had numerous cases dismissed after winning a motion to suppress, so yes, it can be done - but we don't win them all.

Asker

Posted

In my case there is no intersection within a half of a mile from the exit and there is no double white line and this occoured at 2:30 a.m. and there was no traffic on the access road, other than the cop. On any given day you can observe 7 of 10 vehicles do exactly what I did which was exit the interstate and cross over to the far right lane to prepare to take a right at the next intersection 1/2 mile away. The other thing the cop notes is drifting onto (not across) the lane marker on the right sied of the road and abrupt stops at stop signs...NONE of this is observed or evident in the video. I do have an experienced DWI attorney who's a member of the DWI College and devotes 90% of his practice to DWI defense. He states "the officer followed you for along time and I don't see anything wrong with your driving" The problem I have is my attorney doesn't explain to me how he plans on handling my case and he's very unapproachable" so I'm left guessing how or what he's going to do in my case. I really appreciate your time for helping me clear up some of the questions I haven't been able to do so with my attorney or my own research. It sounds to me he's planning on doing something other than trial, because he's stated in our brief discussions about the case, that they'll still have to prove that you were intoxicated. There are other issues in my case as well other than being pulled over for basically nothing. (other than being on the road at 2:30 in the morning)

Gene Raymond Beaty

Gene Raymond Beaty

Posted

We agree with your lawyer's analysis and I empathize with your desire to have better communication with your attorney, but, until the officer testifies, your attorney can't do much more than speculate how he will handle the matter. The good news is that you have wisely selected a highly qualified attorney who is encouraging you and doing what is needed on your case. The best news is that the motion hearing is not a final decision and, even if lost, is not the end of the world, but it looks good for you to win the hearing, so relax and get your money's worth from your good attorney.

Asker

Posted

One last question...does the motion to supress have to be filed by a deadline as my case is set for jury trial in a few months? Thanks again Mr. Beaty for your help and feedback, I really appreciate your time!!!

Gene Raymond Beaty

Gene Raymond Beaty

Posted

No and your lawyer probably not planning on going to trial on 1st setting, but it can be filed and considered in trial. In fact, some judges require that it be handled that way, although most of us prefer a separate pretrial hearing. However, a really good lawyer friend of mine did it first in trial and was very happy because it created an acquittal that could not be appealed by State, so that's an option sometimes.

Asker

Posted

ahhhh...makes sense and makes me feel better. I know he's VERY good at what he does, he just doesn't do a very good job communicating his strategy which, like you said, may not be known at this point. With the probable cause issue, and a few others I'm very confident that he's got it all under control and I'll take your advice and relax and get my money's worth from the fee I paid. Thanks again and have a Happy Holiday Season.

Posted

Failure to maintain a single lane is a violation of the Texas Transportation Code. Police officers can pull someone over to investigate this offense. They can also investigate if they think a driver may have a medical danger. During the detention, if the officers believe a crime was committed, the driver can be arrested.

Once a person is arrested, his/her attorney must file a pretrial Motion to Suppress. A judge then hears the evidence [people testify and/or the traffic stop video is played]. The judge is not allowed to read the police report. If the judge determines there was insufficient evidence to arrest the driver, she will grant the motion to suppress. The case could then be dismissed, but there are exceptions to dismissal.

Talk to a criminal defense attorney about the specific facts in your arrest to see if your case might be worth having a hearing on a motion to suppress.

The use of this information shall not create any attorney-client relationship. As noted, you should seek and retain professional counsel in your local county.

Asker

Posted

In my case there is no intersection within a half of a mile from the exit and there is no double white line and this occoured at 2:30 a.m. and there was no traffic on the access road, other than the cop. On any given day you can observe 7 of 10 vehicles do exactly what I did which was exit the interstate and cross over to the far right lane to prepare to take a right at the next intersection 1/2 mile away. The other thing the cop notes is drifting onto (not across) the lane marker on the right sied of the road and abrupt stops at stop signs...NONE of this is observed or evident in the video. I do have an experienced DWI attorney who's a member of the DWI College and devotes 90% of his practice to DWI defense. He states "the officer followed you for along time and I don't see anything wrong with your driving" The problem I have is my attorney doesn't explain to me how he plans on handling my case and he's very unapproachable" so I'm left guessing how or what he's going to do in my case. I really appreciate your time for helping me clear up some of the questions I haven't been able to do so with my attorney or my own research. It sounds to me he's planning on doing something other than trial, because he's stated in our brief discussions about the case, that they'll still have to prove that you were intoxicated. There are other issues in my case other than being pulled over for basically nothing. (other than being on the road at 2:30 in the morning)

Posted

In Georgia, and under the U.S. Constitution, "Probable Cause" is what is required to arrest someone or to hold them in jail. "Articulable Suspicion" of a violation of law or traffic infraction is what is required to initiate a traffic stop under the 4th Amendment, which then leads to a DUI investigation. In Georgia, the Courts have held that weaving within the lane can be "articulable suspicion" of DUI because the legal limit is so low.

Every case is different and the Judge generally has broad discretion to either find an articulable suspicion or a lack of one. DUIs are like snowflakes. Every one is different. So, do yourself a favor and hire a qualified local DUI attorney. You wouldn't do surgery on yourself, so why would you represent yourself in court? The consequences of failure can be equally devastating.

No legal advice should be obtained from this response alone. This response is a matter of attorney opinion only. George C. Creal, Jr., P.C. is Georgia Professional Corporation authorized to practice law in the State of Georgia only and all information contained in this response is intended for use for DUI/DWIs occurring in the State of Georgia. Individuals with DUI/DWIs from outside the State of Georgia should contact a licensed attorney in the state of occurrence of their DUI.

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