Most DWI?s start with a traffic stop which is why the first thing to evaluate in your case is whether or not it was a lawful stop. ?Being stopped for a traffic violation is a temporary detention. ?Temporary detentions are meant to provide the police an opportunity to further investigate whether or not a crime has occurred or is occurring. ? During a traffic stop you are not free to leave so the law says you are being ?seized? by the police. ?Therefore a traffic stop is evaluated against your protections under the 4th amendment from ?unreasonable seizures.? ?Traffic stops can be unreasonable either because the initial reason for the stop was not reasonable or because the detention following the traffic stop was not reasonable.
So what is reasonable and what is unreasonable with regard to a traffic stop? ?The basic rule is that the police must have ?reasonable suspicion? based on ?articulable facts? that a crime has occurred or is occurring in order to conduct a traffic stop. ? Traffic stops typically involve the police seeing someone commit a traffic offense such as speeding. ?It is difficult to fight against a police officer who says they saw someone speeding but it is not always as straightforward.
Courts look at each case and set of facts separately. ?So we can look to past decisions to help guess at what is and what is not reasonable suspicion. ?The GOOD NEWS: Reasonable suspicion requires more than suspicion or ?hunch.? ??The BAD NEWS:?Reasonable suspicion may exist even where the conduct of the person detained is ?as consistent with innocent activity as with criminal activity.? ?This means that you don?t have to be doing anything illegal to be detained. ?This is most often seen when a driver is stopped for weaving within a single lane. ?Weaving within a single lane is not a traffic offense but it is common behavior for an intoxicated driver. ?Since it is not a law violation, the police cannot justify stopping someone for weaving with their lane BUT if the police can explain why such driving behavior caused them to have reasonable suspicion that the driver was intoxicated, then it is a lawful reason to stop someone.
The San Antonio Court of Appeals provided an explanation for when weaving is and is not a legal basis for a stop. ?They held that weaving?within a lane is not a lawful reason to stop a driver unless?the weaving is?erratic, unsafe, or?tends to indicate intoxication?or?other criminal activity. ??An example of circumstances that tend to indicate intoxication?is that the driver just pulled out of a bar, it?s late at night and they are weaving. ?In that case, the officer only testified that they observed weaving so they case was thrown out.??State v. Arriaga, 5 S.W.3d 804 (Tex.App.?San Antonio 1999, pet. ref?d).
Reasonable Traffic Stop Gone Bad
What the Police?CAN DO?During a Traffic Stop
Ask for your Driver?s license.
Ask for your proof of financial responsibility.
Ask for proof of your vehicle?s registration.
Check to see if you have any open warrants for your arrested.
Police can ask unrelated questions as long as it doesn?t prolong the stop.
Police can detain you as long as it takes to do the above and write you a citation.
What the Police?CANNOT?DO?During a Traffic Stop
Police cannot detain you any longer than is necessary to accomplish the above without providing additional reasonable suspicion for the prolonged detention.
The Bad News
The smell of alcohol provides an officer the additional reasonable suspicion to prolong the detention and begin a DWI investigation.
Profiling & ?Pretext Stops?
The law does not care as to the real reason a police officer stopped you as long as the police officer has a legal basis for stopping you. ?That means that illegal profiling is almost impossible to prove as long as the profiling is coupled with reasonable suspicion of criminal activity.