There are a variety of reasons why you would want evidence excluded from a traffic ticket trial in Texas. One of the main reasons is that the video of the offense is so powerful that if it were seen by the jury they would find a client guilty. So how do you exclude that evidence? This article outlines one way that defense attorneys could try to exclude the submission of evidence that would otherwise have a negative impact on a jury based on the fact that the police officer was violating the law at the time that the evidence was gathered. It is our opinion that the method would probably not be successful based on Section 546.001 Of The Transportation Code. But that does not mean that it isn’t worth trying. In the end a zealous defense of a client that stands the chance of losing their license as a result of a conviction could justify at least trying to make the case that the evidence should be excluded.
Evidence Not To Be Used At Trial
Article 38.23 of The Code Of Criminal Procedure allows for a defense attorney to have evidence excluded from trial if it was obtained illegally. That specific section reads as follows:
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Art. 38.23. EVIDENCE NOT TO BE USED. (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained. (b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.
Illegally Parked Police Vehicles Trying To Catch Speeders
How many times have defense attorneys watched a video of a traffic stop and witnessed an officer illegally parked? How many times have you seen a motorcycle cop sitting in a median? How many times have you seen a police officer obstructing traffic in the turn lane while clocking cars in the opposite lanes of traffic? Technically, the officer is committing a traffic offense “in violation of the laws of the State of Texas as outlined in section (a) of Article 38.23 listed above. One of the main statutes related to illegal parking in Texas is the following statute:
Sec. 545.302. STOPPING, STANDING, OR PARKING PROHIBITED IN CERTAIN PLACES. (a) An operator may not stop, stand, or park a vehicle:
(1) on the roadway side of a vehicle stopped or parked at the edge or curb of a street; (2) on a sidewalk; (3) in an intersection; (4) on a crosswalk; (5) between a safety zone and the adjacent curb or within 30 feet of a place on the curb immediately opposite the ends of a safety zone, unless the governing body of a municipality designates a different length by signs or markings; (6) alongside or opposite a street excavation or obstruction if stopping, standing, or parking the vehicle would obstruct traffic; (7) on a bridge or other elevated structure on a highway or in a highway tunnel; (8) on a railroad track; or(9) where an official sign prohibits stopping. (b) An operator may not, except momentarily to pick up or discharge a passenger, stand or park an occupied or unoccupied vehicle: (1) in front of a public or private driveway; (2) within 15 feet of a fire hydrant; (3) within 20 feet of a crosswalk at an intersection; (4) within 30 feet on the approach to a flashing signal, stop sign, yield sign, or traffic-control signal located at the side of a roadway; (5) within 20 feet of the driveway entrance to a fire station and on the side of a street opposite the entrance to a fire station within 75 feet of the entrance, if the entrance is properly marked with a sign; or (6) where an official sign prohibits standing. (c) An operator may not, except temporarily to load or unload merchandise or passengers, park an occupied or unoccupied vehicle: (1) within 50 feet of the nearest rail of a railroad crossing; or (2) where an official sign prohibits parking. (d) A person may stop, stand, or park a bicycle on a sidewalk if the bicycle does not impede the normal and reasonable movement of pedestrian or other traffic on the sidewalk. (e) A municipality may adopt an ordinance exempting a private vehicle operated by an elevator constructor responding to an elevator emergency from Subsections (a)(1), (a)(5), (a)(6), (a)(9), (b), and (c). (f) Subsections (a), (b), and (c) do not apply if the avoidance of conflict with other traffic is necessary or if the operator is complying with the law or the directions of a police officer or official traffic-control device. (g) If the governing body of a municipality determines that it is necessary to improve the economic development of the municipality’s central business district and that it will not adversely affect public safety, the governing body may adopt an ordinance regulating the standing, stopping, or parking of a vehicle at a place described by Subsection (a)(1), other than a road or highway in the state highway system, in the central business district of the municipality as defined in the ordinance. To the extent of any conflict between the ordinance and Subsection (a)(1), the ordinance controls.
Now Again, imagine an officer on a motorcycle who has illegally parked on a sidewalk to get a better view of oncoming traffic. In this scenario, that officer has violated the Texas Transportation Code Section (a)(2). You can’t park a vehicle on a sidewalk. The law is very clear that any other type of vehicle would be cited under this section of the transportation code for breaking the law.
Making The Argument That Article 38.23 Applies
During testimony, the ticket defense attorney must do the following:
- A ticket defense lawyer must point out the placement of the police officer’s vehicle.
- They must establish that under the law it was parked illegally or obstructing traffic illegally in a way that, if it were a normal vehicle, the car, truck or motorcycle would be cited for an offense under the Transportation Code.
- They must also establish that officers are not relieved of the duty of care to (1) operate a vehicle with the appropriate regard for the safety of all persons on the roadway and (2) that there is nothing in the law relieves them from the consequences of reckless disregard of for the safety of others.
- Once this is established, you can then request a jury instruction to have the jury, “that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.” This means that the officer’s evidence of an offense would be cancelled out by the illegal activity committed. Since that evidence is not admissible, then the case would effectively be dismissed.
The Prosecution’s Counter Argument to Article 38.23 And Your Response
If the prosecutor is good, they will look up the sections of the Transportation Code as it relates to emergency vehicles. In that section, there is a provision that states the following:
Sec. 546.001. PERMISSIBLE CONDUCT. In operating an authorized emergency vehicle the operator may: (1) park or stand, irrespective of another provision of this subtitle; (2) proceed past a red or stop signal or stop sign, after slowing as necessary for safe operation; (3) exceed a maximum speed limit, except as provided by an ordinance adopted under Section 545.365, as long as the operator does not endanger life or property; and (4) disregard a regulation governing the direction of movement or turning in specified directions. This statute effectively excludes emergency vehicles from illegal parking. Once it is brought up by the prosecutor, you need to be ready to respond. Your counter-argument is contained in Section 546.005 of The Transportation Code. This section relates to the 3rd element that you established above showing the officer is not relieved of their duty of care. Section 546.005 reads as follows:
Sec. 546.005. DUTY OF CARE. This chapter does not relieve the operator of an authorized emergency vehicle from: (1) the duty to operate the vehicle with appropriate regard for the safety of all persons; or (2) the consequences of reckless disregard for the safety of others.
What Are Trying To Accomplish By Making This Argument
The hope is that a judge will allow your jury instruction to have the jury decide if the officer was reckless and disregarded the safety of others by his or her illegal parking. If the jury decides yes, then the evidence is excluded. If the judge decides that the Duty Of Care only applies to civil liability and that an officer can illegally park otherwise, then your argument fails and the instruction will not be allowed.
Is Article 38.23 A Viable Argument For Traffic Tickets?
Article 38.23 is a creative way to try to exclude bad evidence. Will it work? There is no real caselaw that we could find at the time of writing this article on this specific issue. So it is our opinion that it should be considered when you have officers who are taking risks by parking illegally possibly even recklessly to write traffic tickets.
