When driving the speed limit is breaking the law

If, on a highway having more than one lane with vehicles traveling in the same direction, the Texas Department of Transportation or a local authority places a sign that directs slower traffic to travel in a lane other than the farthest left lane, the sign must read "left lane for passing only." - Texas Transportation Code Sec. 544.011 

An operator of a vehicle on a roadway moving more slowly than the normal speed of other vehicles at the time and place under the existing conditions shall drive in the right-hand lane available for vehicles, or as close as practicable to the right-hand curb or edge of the roadway, unless the operator is: (1) passing another vehicle; or (2) preparing for a left turn at an intersection or into a private road or driveway. -- Texas Transportation Code Sec.  545.051(b) 

What better way to create an excuse for pulling motorists over to see who might have been drinking but to enforce a little known, and little observed, traffic statute.

We all know that the left lane is the fast lane. We're all taught to pass to the left. I have been known to drive my car at a speed quite a bit above the one posted on the roadside traveling back and forth to the Dallas area for seminars - but even I move to the right when someone's coming up behind me at warp speed.

So, yes, there are plenty of motorists out there who think for some yet unknown reason that they are more than justified to plod along in the left lane at the speed limit. These tend to be the same people who count the number of items someone takes out of their basket in the express lane and who tattled on their younger siblings when they were growing up.

And, as much as I hate getting behind that person on the freeway, I have a hard time supporting anything that gives the police yet another excuse to pull someone over who isn't doing anything wrong. But, up in Montgomery County (the land the Constitution forgot) and out in Fort Bend County, if you're cruising along in the left lane not passing anyone - you risk getting pulled over and either being issued a warning or being ticketed. And, should you be coming home from a night out with friends after consuming an adult beverage or two, you could find yourself being arrested for driving while intoxicated.

Why else would Warren Diepraam and the Montgomery County District Attorney's Office get themselves involved in such an initiative? Hell, if you can't pull 'em over for doing anything illegal - you might as well pull them over for driving the speed limit.

So, as annoying as it may be to be driving behind the guy who thinks he needs to police speeds on the highway, the last thing we need to do is give the police yet another excuse to pull someone over. It's bad enough that we allow DWI stops based on behaviors that during the day wouldn't get a second glance from a police officer. But to allow a DWI stop when the only sin being committed is driving the speed limit in the wrong lane is hardly a good idea.

And what about officers who want to have it both ways? Are the police not going to ticket anyone for speeding if they are passing slower moving vehicles to the left? At the rate things are going, pretty soon up in Montgomery County driving on the highway alone will amount to reasonable suspicion that someone is breaking the law.

HPD's dirty little ticket secret

We all know that it's hard to win in traffic court. The officer has his shiny gadget that tells him how fast you may or may not have been driving - a readout that no one but him ever sees. And what about when he asks you for your driver's license and insurance? Chances are there's no one else in the car to contradict a word he says.

As far as the prosecutor and cashier judge are concerned he's got you on three grounds. Maybe you've got your insurance card to prove you had coverage at the time of the stop. Okay, that's one for you.

But what about that driver's license. There's no question it was valid at the time of the stop. But were you carrying it with you? Remember, it's your word against his.

Maybe they offer to dismiss the no driver's license charge if you take a deferred on the speeding case. Or maybe they offer you deferred on one and defensive driving on the other. All works out the same in the end - the city gets what it wants and you get screwed.

Happens every day in every court in the Municipal Courthouse.

But now there's a little twist.

What if the police officer has already preset his ticket-writing computer to issue citations for speeding, no insurance and no driver's license? Sounds crazy, doesn't it?

Unfortunately,  that's exactly what's been happening in Houston.

According to this article in the Houston Chronicle, Shirley Simmons was pulled over for speeding in a school zone near her grandson's school. What she didn't realize at the time was that the officer also cited her for failing to display a driver's license and for not having proof of insurance.

When she got home, put on her glasses and closely read the ticket, she discovered two incorrect charges: failure to display a valid Texas driver's license and lack of insurance. She went to two nearby Houston Police Department stations, but was directed to the traffic division downtown. 

After a supervisor spoke with her and the officer, the two extra violations were removed. She still must go to court later this month for driving 5 miles-per-hour over the limit. But Simmons, a disabled 61-year-old grandmother, wonders if officers are pre-setting tickets with violations in certain communities, like the crossroads of Sunnyside and South Acres, where she was stopped.

There is no doubt that there are a great number of drivers in our fair city who don't have a valid driver's license or insurance. I've had quite a few as clients of mine. But until Sgt. Robert Gonzales opened up his mouth without thinking, I had no idea that it was standard practice to have certain charges pre-set into the computer to save time.

Of course Sgt. Gonzales doesn't see it as a problem. And why should he? The traffic division is a fundraising unit for the City of Houston. The police aren't trained to look at people as being innocent unless proven otherwise. That kind of thinking is anathema to a police officer.

The problem, Sgt. Gonzales, is that no ticket spit out of a ticket-writing computer can be trusted anymore. We don't know if those charges were pre-set defaults or violations the officer actually observed. Hell, we don't even know if the ticket really tells us why the driver was stopped in the first place.

If a motorist is cited for speeding, failure to display a driver's license and not having proof of insurance - but they come to court with a valid driver's license and insurance card, wouldn't it be more likely that the motorist is being truthful when he says he wasn't speeding?

But, in a land in which judges are happy to sign check-the-box and fill-in-the-blank search warrant forms authorizing forcible blood draws in DWI cases, why should it surprise us that the police have rigged the ticket-writing computers?

And why, by the way, wasn't the officer who issued the ticket to Ms. Simmons not charged with filing a false government document? He pre-set the information. He knew it was pre-set. He printed out the ticket and handed it to Ms. Simmons. Then he filed a copy with the court.

Oh, but it was an accident. He didn't mean to do it. He was really sorry about it. Not that he did anything wrong, though.

Just another day at the office for Michael Reichert

I haven't yet decided whether to laugh at this video or to throw sharp objects at my monitor. Radley Balko posted this video on his blog at the Huffington Post of a couple of guys on their way home to Ohio after attending a Star Trek convention in St. Louis. Their trip home took them through the town of Collinsville, Illinois  where they had the pleasure of meeting Officer Michael Reichert.



Officer Reichert got a little itch up his ass that Terrence Huff and his passenger were carrying drugs in their car. After stopping Mr. Huff for allegedly weaving he proceeded to detain the two for far longer than was necessary for a routine traffic stop. Based on his passenger's "nervousness," Officer Reichert decided that Mr. Huff was carrying something illegal.

Officer Reichert continually tries to bait Mr. Huff into coughing up marijuana by telling him he wasn't interested in any drugs that were for "personal use." Of course you know as well as I do that Officer Reichert wasn't about to let Mr. Huff continue on through the Land of Lincoln with any dope in the car.

Unfortunately, what happened to Mr. Huff isn't an outlier. This goes on every day across this country. They get away with it because it's hard to prove a negative. The police manufacture probable cause to stop motorists around the clock. The most common in Houston is not using a turn signal when changing lanes or turning. Nevermind the fact that few drivers use their turn signals during the day; at 2am after the bars close, not signaling that lane change is a ticket to the jailhouse.

In order to justify tossing a car, an officer will say one or more occupants appeared nervous or that the stories of where they were going didn't match up. Officers will claim reasonable suspicion because a motorist is carrying a large amount of cash - or not carrying any cash. Somehow driving on a US highway gives an officer reason to believe someone is carrying contraband.

And never forget the ways in which officers can manipulate dogs to signal whatever it is they want. I once had an officer claim that his drug dog would sit, bark, scratch, lay down or jump whenever he sensed drugs. The last time I checked, Sgt. Bruss, that just about encompasses everything a dog does - whether it detects something or not.

For those of y'all who still cling to the naive belief that the police don't lie (that is, judges and prosecutors), just listen to what Officer Reichert says and watch what he does. I guarantee you've seen it before. Maybe next time you'll look at it a little differently.

Speedtrapped

For anyone who has spent any time traveling on US59 north of Houston, the name "Patton Village" evokes strong emotions. For those of y'all not familiar with the area, Patton Village is one of the most (in)famous speedtraps in this part of the state.

But for the city limits sign on the highway, you'd never know it was there. I have no idea what's in Patton Village - but I do know the local police patrol a stretch of 59 as if the future security of the Republic depended upon it.

Now it would seem that the worm has turned, so to speak.

Yesterday the mayor of Patton Village was arrested and six other city officials, including the court clerk and three police officers, were indicted in Montgomery County following an investigation by the Montgomery County District Attorney's Office, the Texas Rangers, DEA, FBI, DPS and the Department of Agriculture(?).

The charges include abuse of official capacity, misuse of official information, misapplication of fiduciary property, securing execution of a document by deception and theft by public servant.

Yes, I know those folks are innocent unless proven guilty - but it's more than a bit hard to have any sympathy for people who have abused power to the degree they did up there.

Here's your salute to the political establishment of Patton Village, courtesy of Sammy Hagar...

The price of due process

Out in the hinterlands of Texas, near the Red River, is a place called Jack County. A total of about 8800 folks call Jack County home. Of course there is a local constabulary patrolling the (largely) empty roads of Jack County. Maybe they're looking for terrorists, drug dealers and liberals. They are most assuredly looking for speeders.

The folks in the JP's office are more than happy to let you know just how much it will cost you to get through Jack County as quickly as possible.

As with any place else in the Lone Star State, you can choose to have your ticket dismissed after completing a driver safety course or a probationary period, along with the payment of a bribe court fee. If you're the daring sort, you can even challenge the ticket in court.

And the court's minions will allow you to exercise your constitutional right to due process for the posting of a $200 appearance bond.

What a bargain!

What a farce.

Now I would imagine that most of the folks who receive a traffic citation in Jack County are just passing through (as quickly as possible, no doubt). And I can't think of too many good reasons to drive back up there to contest a traffic ticket. I would assume that the court collects quite a few pretty pennies from folks who just want to get their case dismissed without the hassle of fighting it.

But to charge someone $200 to exercise their right to a trial by jury in a criminal case is not only ridiculous - it's unconstitutional. Nowhere in the U.S. Constitution does it state that the people have a right to due process if they can afford it. Nowhere in the Texas Constitution does it state you only get to exercise your right to due process if you can afford to post a bond.

The entire purpose of the appearance bond is to discourage the few people who are willing to stand up and challenge a speeding ticket. It should be no surprise that it's a justice of the peace court imposing such a rule. The criminal (in)justice system is replete with examples of judges at the bottom of the food chain acting like tyrants.

Sure, defendants in county and district court have to post bonds to get out of jail -- well, if you're a defendant in county or district court you've been charged with an offense that carries the possibility of confinement. Hell, you were handcuffed and carted off to the county jail.

But you aren't subject to confinement if you're found guilty of speeding. When the officer asks you to sign the ticket you are making a promise to appear in court. The requirement of an appearance bond to exercise your right to hold the state to its burden only serves as a restriction on the due process rights of motorists in Jack County.

Violation Sheet

Bill to ban texting while driving on cusp of passage

State Representative Tom Craddick (R-Midland) has proposed legislation (HB243) that would ban drivers in Texas from sending or reading text-based messages while driving. The measure passed 124-16 in a preliminary vote and will go before the House for formal approval today. Should it pass, the companion bill in the Senate will take up the matter.

Supporters of the bill argue that banning texting while driving will make roads safer as there will be one less distraction for drivers to deal with. Opponents cited privacy concerns as a reason for voting against the proposed legislation. In response to critics who raised questions about privacy rights, Rep. Craddick answered:

"Driving is not a right. Driving is a responsibility and a privilege."

While that is what the courts have ruled, motorists are still afforded their Fourth Amendment rights to be free of unreasonable search and seizure while driving a car. Calling something a privilege does not give the government carte blanche to do as it wishes.

But more interesting that Rep. Craddick's parsing of rights and privileges is another statement attributed to him by the Houston Chronicle:

Citing research, Craddick said texting while driving is 20 times more dangerous than drunk driving.

I don't know to what research Mr. Craddick is citing but I think he's right that texting while driving is more dangerous than drunk driving. Let's think about it for a second. Most drunk driving incidents occur after dark when there are fewer people on the roads. During the day roads are jammed and if you take a look around you'll see plenty of drivers on their cell phones.

According to the House Research Organization:

CSHB 243 would promote driver safety by prohibiting drivers from texting, instant messaging, or e-mailing. Texting may not be the only distraction while driving, but it is one of the most dangerous. The bill would introduce a commonsense safety law that would help deter this dangerous behavior.  

Accumulating research resoundingly concludes that texting while driving distracts drivers and increases response times to sudden traffic incidents. Like drunk driving, driving while texting has injured and killed drivers, passengers, and innocent bystanders. 

And what punishment will the state mete out for violators who endanger their fellow Texans by reading and sending text messages while driving? What will these motorists who are more dangerous than drunk drivers get when they step in front of a judge?

Jail time? No. Probation? No.

It'll be a Class C misdemeanor with a $200 fine.

That's right. For committing a crime that, according to the bill's author, is twenty times more dangerous than driving while intoxicated, you'll get a traffic ticket with a maximum fine of $200. Go to the window, ask for a deferred, pay a fine and it'll be dismissed in 90 days.

Big Brother is watching your car

I had just put the girls to bed and was looking to unwind for a few minutes so I flipped on the television and watched Billy the Exterminator track down a copperhead and kill a bunch of yellow jackets. Nothing weighty - just some laughs while Billy exaggerates the danger of every bug, rodent and creature he comes across.

But next came something I wasn't expecting -- Parking Wars. Where I was amused while watching bugs meet horrific deaths, I was shocked at what goes on in the City of Brotherly Love. Parking enforcement officers ride in vans equipped with cameras and computers that scan the license plates of parked cars and run them through the city's database of delinquent parking tickets. It doesn't matter if your parked legally -- if the van comes through and gets a hit on your license plate, your car is getting booted. Of course since there are few houses with driveways in the Philadelphia neighborhoods where the parking officers cruise, just parking your car legally on the street makes you fair game.

The other thing that struck me was the delusional self-importance of the guy driving the van. The most "true believer" prosecutor has nothing on this guy. Apparently he's doing the lord's work. Of course delusional self-importance can also be found in the courtroom. Ironically enough, the lower down the chain you go, the more delusional are the people you meet. A judge in traffic court will issue an arrest warrant if someone is 15 minutes late to an 8:00 a.m. docket call -- even though the police don't have to saunter in until 1:00 p.m. In felony court? Your client will be seated in the jury box and told not to be late again. And then there's this guy -- he's the bailiff in a Harris County Justice of the Peace Court down a way from here in a place sometimes referred to as Area 51 that will not be named.



See also:

"Big Brother on Wheels," Defending People (9/24/2008)

Audit reveals problems in radar traffic enforcement

It's amazing what a simple little public information request will turn up sometimes.

In Harris County it turns out that deputy constables in more than one precinct aren't certified to use the radar equipment they're using to issue tickets to motorists. Furthermore, it turns out that the radar devices they've been using weren't all calibrated or maintained properly. (See video.)

Precinct 6 (East Houston) Constable Victor Trevino has halted all radar traffic enforcement until his officers receive proper training. In Precinct 1 (Central Houston) officers are not to issue radar-based traffic tickets until they receive proper training. Precinct 5 (West Houston) Constable Phil Camus has removed about 100 radar devices from patrol cars until they've been recalibrated. Precinct 3 (Southeast Houston) Constable Ken Jones has ordered officers to obtain the proper training and certification before they can issue any more tickets.

"To me, I'm embarrassed."  -- Precinct 5 Constable Phil Camus

The issue becomes bigger than just lost revenue for the county and fines for motorists when you consider that most DWI stops begin with a traffic stop for a transportation code violation, such as speeding or not signalling a lane change. If the officers weren't certified to use the equipment and the equipment wasn't maintained properly, the basis for the stop is called into question.

The larger question is who allowed this to happen? Were the elected constables negligent in their duties? What about administrators who are supposed to keep tabs on deputies? Radar devices and breath test machines -- what else that the state buys can't you trust?

DA looking into traffic fatality prosecutions

The Harris County District Attorney's Office is in the middle of reviewing over 100 traffic fatality cases to determine if proper protocols were followed in bringing criminal charges against drivers deemed at fault.

The vehicular crimes section was started up under disgraced former District Attorney Chuck Rosenthal and was seen as former prosecutor Warren Diepraam's baby. Mr. Diepraam is now working for the Montgomery County District Attorney's Office

According to a statement released by the DA's office, prosecutors in the vehicular crimes section "deviated" from office policy in filing criminal charges in the cases that are under review.

"The Vehicular Crime Section had deviated from the long-standing practice of this office concerning what was necessary to raise a civil negligent traffic accident case to that of criminal negligence." -- Harris County DA's Office statement

In response to claims from law enforcement personnel that this case review would make Houston's roads more dangerous for motorists, the DA's office said, in a written statement, that streets would not be made less safe if the office followed the law when deciding when to bring criminal charges against a motorist.

The sad reality of living in a major metropolitan area is that with more cars on the roads, accidents are more likely to happen -- including fatality accidents. In Houston we like to drive fast, and that leads to accidents. But that's what they are, for the most part -- accidents. There is a difference between civil negligence and criminal negligence when it comes to accidents.

It's one thing to cause an accident because you're driving too fast, it's quite another to cause an accident because you're under the influence of drugs or alcohol or because you're involved in a high-speed race on the freeway.

New traffic laws take effect in Texas

Here is a summary of new traffic laws going into effect in Texas beginning on September 1, 2009...

SB 328

The power of the police to draw blood in a DWI case is expanded. Warrantless blood draws will be mandatory if a person is arrested for an offense under Chapter 49 of the Texas Penal Code (Texas DWI Statute) and refuses the arresting officer's request for a specimen of breath or blood and

• A person, other than the suspect, suffered bodily injury and was transported to a hospital or other facility for medical treatment;
• The driver is under arrest for DWI with a child passenger under the age of 15;
• The person has at least two prior DWI convictions; or
• The driver has a previous conviction for DWI with a child passenger under the age of 15, intoxication assault or intoxication manslaughter.

The bill also allows any magistrate in Texas who is a licensed attorney to sign a search warrant authorizing a blood draw.

HB 357

ALL occupants of a car or truck must wear a seatbelt, regardless of their age or where they sit.

The definition of passenger vehicle will now include passenger vans designed to transport 15 or fewer passengers.

Motorcycle operators may not carry a passenger under the age of 5 unless that passenger is seated in a sidecar.

SB 61

All children under the age of 8 must be restrained in an approved child passenger seat UNLESS the child is at least 4 feet 9 inches tall. The fine for committing an offense will be $250 and a special court cost will be added to help TxDOT provide safety seats for low income families. While the law goes into effect on September 1, 2009, officer may not issue citations until June 1, 2010;.

HB 55

School zones are now off limits to drivers using wireless communication devices -- unless the vehicle is at a stop or the operator is using a hands-free model. In order to enforce this prohibition, signs must be posted at the beginning of each school zone to inform drivers of the prohibition. It is a defense to prosecution if the operator is making an emergency phone call.

HB 2730

A driver's license suspension will now be mandatory for anyone convicted of driving while intoxicated with a child passenger. The reinstatement fee after completing an education class will be raised from $50 to $100. Minors will no longer be able to avoid license penalties if they turn 21 before their court date.

Turning a traffic stop into something more

I came across an interesting article written by Joe Buckley, president of John E. Reid and Associates, in The Police News this morning as I tooled around the Galveston County Courthouse and the county jail. For those of you not familiary with John E. Reid and Associates, they are the developers of the Reid Technique of interrogation.

"The officer conducting a roadside interview is in a unique position to develop incriminating information. Because the initial stop is for a traffic offense, Miranda warnings are not required. Most of these stops are made when the officer sees a violation occur so the driver already knows that he or she has been caught doing something wrong and this awareness makes it easier to acknowledge other transgressions. Finally, the driver is and car occupants are caught off guard without the opportunity to create a credible alibi or dispose of incriminating evidence that may be in the vehicle."

A DWI case begins, usually, as a simple traffic stop. Of course, the task force officers are just looking for any justification to stop the driver, and, if you watch long enough, someone's going to do something wrong. In the same context, it never ceases to amaze me how many people consent to a police search of their car knowing full well that the officer is going to find something that shouldn't be there. Do you really think that officer who found the cocaine in the center console is going to let you walk because you consented to the search?

"It must be remembered that people stopped for traffic violations are, for the most part, guilty of the offense for which they were stopped and will certainly exhibit symptoms of anxiety as a result of being caught. In this sense, persons stopped for a traffic violation are "guilty" of the violation. However, they may exhibit behavior symptoms of guilt or deception because of involvement in some unrelated criminal activity or because they lied to the police officer's questions..."

When an officer starts questioning a motorist after a traffic stop he's not only interested in what the driver has to say -- he's just as interested in how the driver says what he says. It's something to think about as more states are pushing the police to enforce seatbelt laws. If an officer sees you driving without wearing your seatbelt, he's got as good a reason as any to pull you over... and thus it begins again.

"Persons with nothing to hide pull to the side of the road when the officer turns on lights and siren; when at home, they answer the door when the officer knocks on it and respond to questions without objection. Conversely, it is a classic symptom of guilt for a person to run from the police in response to an effort to stop his vehicle or question the suspect at his home."

Of course it must also follow that only the guilty person is interested in exercising his constitutional rights and demanding that he be afforded the protections found in the Bill of Rights. Maybe we could dispense with the entire trial system and convict people on their willingness to talk to the police.

"Communicating with one's hands occurs when a person is confident and sincere in his statements. Illustrators reinforce the credibility behind the spoken word. The lack of illustrators can be a significant behavior symptom of possible deception. The classic description of a guilty person going through a border stop is that the subject's hands are cemented to the steering wheel at the 11 and 2 o'clock positions and his eyes stare straight ahead at the road. Simiarly, when questioning a child who has done something wrong, the child will hide his hands by putting them in his pockets."

This is the essence of the Reid Technique - the nonverbal cues that either jibe with what's being said or are in stark contrast to the spoken word. Where is someone looking? What are they doing with their hands? How is someone standing?

The Reid Technique also involves an interrogator putting himself in the suspect's shoes and trying to imagine a scenario in which the suspect would feel justified in doing that which he allegedly did. For instance, if a man is suspected of murder, his interrogator may be able to lead the suspect down the path of self defense in an attempt to convice (coerce?) the suspect into admitting he killed the victim. In David Simon's Homicide: A Year on the Killing Streets, the Baltimore detectives referred to this particular technique as the light at the end of the tunnel.

The lesson, as always, is to pay attention when that officer tells you that you have the right to remain silent.

It's spring in the valley

While I spend most of my time downtown at the Criminal (In)justice Center, I still handle the occasional traffic ticket in Harris County. One of the more bizarre places I practice is the bedroom community of Spring Valley. For those of you who don't know, Spring Valley is one of several (white) enclaves in the Spring Branch area surrounded the City of Houston.

Spring Valley is located north of the Katy Freeway between Bingle and Blalock. For those of you who aren't familiar with Spring Branch, I-10 serves as something of a dividing line (the old railroad tracks) between the wealthier, whiter areas (south) and the poorer, browner areas (north).

Everytime I walk into the Spring Valley Municipal Court I'm tempted to ask the assembled citizens how many of them live in Spring Valley -- because, by and large, the huddled masses are overwhelmingly Hispanic. These are the folks who provide services for the citizens of Spring Valley -- lawn care, day care, food -- who have to drive up Bingle or across Westview without the "SV" sticker on the back of their cars.

The Spring Valley police prey on these ordinary folk because the cops know these folks are more likely to be driving without a driver's license or insurance and provide another income source for the city.

Here's a true story -- a couple of years ago some friends of ours (who had just moved to Texas) were driving home after dark. One of Spring Valley's finest saw the Utah license plate (and no "SV" sticker) and followed them home. The officer parked behind them in their driveway and began questioning the husband about the Utah plates. My friend told the officer he had the Texas plates in the house and would put them on the next morning -- the officer made him do it right then and there. He then issued a warning and told my friend to get an "SV" sticker and put it on his car.