COURT OF CRIMINAL APPEALS REQUIRES OFFICERS TO MEMORIZE SEVEN SITUATIONS WHEN MOTORISTS CAN DRIVE ON SHOULDER (AND AVOID ENSUING DWI INVESTIGATION)
Earlier this month, the Texas Court of Criminal Appeals reversed a decision of the Second Court of Appeals in Fort Worth regarding suppression of the evidence in a Wise County DWI case. The question was whether there was any indication that the defendant violated the driving-on-the-shoulder law. The Court of Criminal Appeals held that the trial court and the Court of Appeals incorrectly agreed with the investigating officer that the defendant violated the driving-on-the-shoulder law. Without a valid basis for the stop, the DWI investigation was illegal.
Assuming that a driver is operating his vehicle safely and that there is a perceived necessity for driving onto the improved right hand shoulder, there are seven scenarios when it is permissible to drive on the improved shoulder. The degree of necessity does not have to be absolute; the pertinent action only has to be desirable. The seven permissible situations are:
(1) to stop, stand, or park;
(2) to accelerate before entering the main traveled lane of traffic;
(3) to decelerate before making a right turn;
(4) to pass another vehicle that is slowing or stopped on the main traveled
portion of the highway, disabled, or preparing to make a left turn;
(5) to allow another vehicle traveling faster to pass;
(6) as permitted or required by an official traffic-control device; or
(7) to avoid a collision.
Scenario number four was in question in the Wise County case. The defendant used the improved shoulder to pass a slow car in front of him at a railroad crossing. Since there was only one lane of traffic going each way, it was safer to use the shoulder then to drive into the oncoming lane of traffic.
Like any traffic law, the statute provides probable cause requirements. There can never be probable cause to stop a motorist for an alleged violation of the driving-on-the-shoulder statute unless there is reasonable cause to believe that the defendant is not taking one of the specified courses of action. Since the defendant was obviously passing a slower vehicle, there was no way for the officer to reasonably believe that the defendant was not taking one of the permissible courses of action. The Fort Worth Court erred in attempting to circumvent the probable requirement by characterizing the list of scenarios as affirmative defenses to the sufficiency of the evidence that the defendant would have to raise.



