Is it RIGHT to drive on the LEFT?
In recent years the Texas Department of Transportation have posted over 3,400 somewhat confusing "Left Lane for Passing Only" signs on the state's roads. For those of us (all of us) who have lied under the unwritten rule that the left lane is the "fast lane", it seems counterintuitive to limit one lane to such a limited purpose. What's more, our clients who have encountered these signs all think the same thing: The rule is nonsensical and any ticket associated with the rule should be dismissed. If only that were the truth.
Let us take this opportunity to assure you of two things - you will get pulled over for not adhering to this sign, and if that stop results in a ticket or an arrest, the court will not be likely to dismiss the case unless you have an attorney who knows how to argue this issue. Thankfully, the Court of Appeals in Kaufman County has recently given us a roadmap on how to attack these cases, if your facts fit their holding. In Rickey DeWayne Abbey v. The State of Texas, the defendant was appealing an arrest for marijuana possession that followed a stop and ticketing for driving in the left lane without passing on Highway 175, where these signs had been posted. No. 05-10-00260-CR, 2011 Tex. App. LEXIS 5529. Abbey believed the marijuana evidence should be suppressed as the fruits of an unlawful stop, and the Court of Appeals agreed, based on the narrow facts of his case.
In Abbey, the defendant was pulled over 27 miles after the last posting "Left Lane for Passing Only" sign, while the police officer who ticketed him only followed his vehicle for a mile or so before hitting his siren. Because there are no specific guidelines of where these signs (referred to as "traffic control devices" for purposes of ticketing) should be placed, or how the Transportation Code defines "at the time and place of the alleged violation" (the relevant language to this ticket), the Court argued that they should consider the totality of the circumstances in determining whether an officer had reasonable suspicion to believe that a suspect has seen one of these signs and violated the law.
The discussion revolved around several factors and ultimately seemed to settle the issue without drawing a bright-line distinction. If there were signs only three miles away (as in a factually distinct case), that was sufficient for reasonable suspicion. But 15 miles was probably too far, given the possibility that the defendant may have entered the highway after that sign. Had the police officer followed the defendant for a longer distance, the holding may have differed. But as it was, 27 miles was definitely too far for the officer to have reasonable suspicion.
So the rule book for handling these cases is fairly well defined at this point. First, don't drive in the left lane on highways with these signs - generally limited to those with 75 mph or higher speed limits. Second, if you do violate the rule and get ticketed, backtrack by 20 or so miles and see where the signs pop up. If you had just passed a "Left Lane for Passing Only" sign a few miles back, and the sign was clearly visible, Abbey doesn't help you. If you can't even find the last sign (or it is greater than 15 miles), give Brent G. Burpee a call so he can argue your case.
The second question some of you are asking is... "Okay, so the stop was bad, so what about the arrest that followed?" This is where we can really help you. If you suffered an arrest as the result of a search and seizure following a bad "traffic control device" stop, and there were no other reasons provided for the stop (such as speeding, expired tags, etc.), the evidence that resulted from the stop may be suppressed and your case dismissed, whether it was an illegal weapon, drugs, or any other contraband. For more information, check out our article: "If the STOP was bad, why do I have to GO to jail?", or call Burpee Law.
As always, if you have any reason to suspect you may be arrested, such as an existing warrant or concealment of contraband, you must be careful not to violate any traffic laws. Driving recklessly, speeding, and violating mundane rules like "Left Lane for Passing Only" opens you up for scrutiny by the police, who have a litany of strategies for locking you up. Don't give them a reason to do so!
By Brent Burpee (Originally Written for Chad West, PLLC: www.chadwestlaw.com)