Pulled over for "speeding"

[karl]

I'll try to make this as objective as possible as it only happened an hour ago and I'm still upset about it.

I'm on the way back home with a buddy of mine from a housewarming party, a few beers were consumed and I am perfectly fit to drive (I'm carrying as well, even more reason to be responsible if driving wasn't enough). I spot an officer driving ahead of me, check my speedometer to make certain I am at the posted speed limit of 65 mph and set my cruise control. As I approach him my friend and I see him tap on his breaks and he begins to slow down (I believe he coasted until I passed him, he was probably at around 50 mph at that time) and I change into the left lane to pass him. He ends up pulling me over.

I pull over: DL, CHL, insurance, dome light, etc. are at the ready. He asks where my weapon is, "right hip" I respond. He says OK and to keep my hands on the wheel. Long story short he gives me a lecture for carrying, drinking and driving and also issues me a ticket for "Alleged Speed" of "75 mph".


Now to defend myself with my take. If I were to have submitted to a breathalyzer I would venture to guess I would have blown a .025; yes I had been drinking but I was well within my limit to operate a motor vehicle. Before my ticket was issued he calls me over his PA and tells me to stand behind the car but set my gun on my seat. I do as he asks and step behind my vehicle in the blinding lights on his squad car. He tells me to relax and I do a standard feet apart, hands crossed in front of me to clear any suspicion of using my hands for anything. Again he calls over the PA, this time with a frustrated, raised voice to "relax". I shift my weight and remain in the same position (I was relaxed, what else can I do?). He has me stand in this position for what seemed to be about 4 minutes. At one point I could make out his outline in his car just staring at me, I don't see why this was necessary. He then gives me the lecture and issues the ticket (just to show where it lines up with the short version). The entire time I felt he was pressuring me to fess up my my "crime" and I never felt he had any concrete evidence on me. For example, when he accused me of speeding past him while he was "moving at 60" as he says he claimed he had to reach 80 mph to catch up with me. I think this was a ploy to get me to admit some sort of guilt; naturally if you're traveling slower than someone and have to catch up you'll need to overcome the first traveller's speed.

With the exception of receiving a ticket, which I will contest, he was polite, but I feel very strongly that he was yanking my chain with the "stand behind the car" bit. I thought the whole time because of my polite demeanor and no evidence he was going to leave me with a warning but that was not the case. If I had to guess I would say he gave me a harder time because I am a younger guy, still in college, with a gun. For the record this is not a discussion about intoxication, Texas Code puts no limit on Intoxication with a CHL and I was not breathalyzed, so it's not an issue even if you have an opinion about drinking and carrying.

If you're with me this far, thanks for reading. Any non-legal advice or tips as I prepare my defense?

[gigag04]

Get a good speeding ticket lawyer - one's been recommended on this board for Houston area - not sure what area this happened. MIght call the Sgt and ask him what the policies are on how to conduct traffic stops.

Did you ask how the speed was identified? He may have been running moving radar with the rear cone, in which case you can take an angle of were there any other signatures the radar was picking up that was larger than yours. When was the unit tuning fork tested? (start of shift?) - was it tested immediately after the stop? He may have visually estimated - while it is still admissible it is historically less concrete in court.

A good lawyer will know all of these. That's weird about having you stand behind the car.

[Pete92FS]

I would guess he had you stand behind the car to observe you. Since you had been drinking; if you had been swaying or had trouble standing still he probably would have done a field sobriaty test and breathalizer. Just my guess.

[Dan20703]

Call David Sprecher 713-639-2600 for the ticket.

[Fangs]

Hey look on the bright side, you got a cop that at least knew that you are allowed to drink, drive, and carry.

Some of them don't know that, and there have been more than a few accounts from people on this forum where they were told by less informed LEOs that they would arrest anyone who had any alcohol in their system while carrying.

I've been issued an 80mph in a 60mph zone by DPS while my speedometer read 65mph (right as you're coming into Waco headed north, just after it drops to 60mph from 65mph). I was really confused as to why I was pulled over and only found out that it was for speeding after the trooper brought me my ticket. A quick call to the judge's office is all it took to discover they would dismiss it if I got my speedometer "fixed" (a receipt from any car shop would suffice, in my case). It wouldn't hurt to call and ask.

All in all, I think your stop went waaaaaay better than it could have.

[Originalist]

Check the penal code definition of "intoxication". There is no such thing as a "legal limit". There is a section that makes having a BAC of 0.08 or higher a crime in and of itself (per se rule) and presumtive evidence of intoxication. the definition also mentions a loss of normal psychomotor skills due to alcohol or drugs so even at a 0.025 you could be charged and convicted of DUI and the weapons violation. I have 3 convictions (as a LEO) on individuals who blew well below 0.08 (0.034, 0.019 and 0.68).

As for the exit, it was like previously stated a look for PC to move onto SFST's (Standardized Field Sobriety Tests). I do 80 to catch up to people going 50 in a 30 so that doesnt reall mean to much, challenge the ticket.

Bryan

[gigag04]

Also...I see a few people saying "my speedometer says XXXX."

Thats fine and dandy but a calibrated and function tested radar or lidar is much more reliable and trustworthy. At least courts accept them as such - the same cannot be said for mfgr speedometer. One of my partners had a BRAND NEW truck that ran 7mph over at 70 - confirmed by a radar or lidar (I forget which). He took it back to the dealer who checked it out, and ended up replacing the unit.

Also - dont forget tire sizes and transmission mods.

Just one more thing to consider.

[karl]

Check the penal code definition of "intoxication". There is no such thing as a "legal limit". There is a section that makes having a BAC of 0.08 or higher a crime in and of itself (per se rule) and presumtive evidence of intoxication. the definition also mentions a loss of normal psychomotor skills due to alcohol or drugs so even at a 0.025 you could be charged and convicted of DUI and the weapons violation. I have 3 convictions (as a LEO) on individuals who blew well below 0.08 (0.034, 0.019 and 0.68).

As for the exit, it was like previously stated a look for PC to move onto SFST's (Standardized Field Sobriety Tests). I do 80 to catch up to people going 50 in a 30 so that doesnt reall mean to much, challenge the ticket.

Bryan

Does that mean I would have to prove the loss of motor skills via physical sobriety test to be convicted at that level? After thinking about the standing part all of today I came to the same conclusion, a mock-sobriety test.

All in all, I think your stop went waaaaaay better than it could have.

Absolutely agree, I'm only mad now that I got a ticket when my speedometer read 65. I'll look into its accuracy, though I highly doubt it's more than 3 or 4 off; I've passed cops at the same speed on other empty roads and had no trouble. Thanks all for the input.

[lws380]

I'm glad it turned out the way it did and I too think it could have gone a lot worse. Good luck on getting the ticket taken care of.

You mentioned you are younger and in college. From an older guy I would recommend you restrain from drinking and driving and restrain from concealed carry and drinking. If it happens again, you may not be so lucky. Then you will be out tons of money to try and defend yourself. If I drink, I don't drive or carry. I'm not trying to be critical, just offer some advice that might help in the future. Best of luck to you!

[chabouk]

Check the penal code definition of "intoxication". There is no such thing as a "legal limit". There is a section that makes having a BAC of 0.08 or higher a crime in and of itself (per se rule) and presumtive evidence of intoxication. the definition also mentions a loss of normal psychomotor skills due to alcohol or drugs so even at a 0.025 you could be charged and convicted of DUI and the weapons violation. I have 3 convictions (as a LEO) on individuals who blew well below 0.08 (0.034, 0.019 and 0.68).

That's true, but if he could make the case for intoxication, it would apply to both DWI and PI/UCW. Neither requires anything more than sufficient testimony by the arresting officer that the subject was intoxicated. On the other hand, the 0.08 BAC standard is prima facie evidence of DWI, just like exceeding the posting limit is prima facie of unsafe speed. And, we all know that both standards are subjective; some drivers/carriers are unsafe at 0.025 or 45, while others are safe at 0.12 or 85 (depending on conditions, of course).

The statutory limit just makes it easier to prove; that's practically the definition of prima facie evidence.

There is one practical difference, though: if someone is arrested for PI despite being below 0.08, the officer's testimony carries great weight no matter what the conditions were at the time. The same officer would have a mighty tough time getting a conviction for "unsafe speed" on a driver who was driving below the posted limit, but who didn't have or cause an accident.

[Originalist]

Check the penal code definition of "intoxication". There is no such thing as a "legal limit". There is a section that makes having a BAC of 0.08 or higher a crime in and of itself (per se rule) and presumtive evidence of intoxication. the definition also mentions a loss of normal psychomotor skills due to alcohol or drugs so even at a 0.025 you could be charged and convicted of DUI and the weapons violation. I have 3 convictions (as a LEO) on individuals who blew well below 0.08 (0.034, 0.019 and 0.68).

As for the exit, it was like previously stated a look for PC to move onto SFST's (Standardized Field Sobriety Tests). I do 80 to catch up to people going 50 in a 30 so that doesnt reall mean to much, challenge the ticket.

Bryan

Does that mean I would have to prove the loss of motor skills via physical sobriety test to be convicted at that level? After thinking about the standing part all of today I came to the same conclusion, a mock-sobriety test.

Lets work on wording a little bit, you dont have to prove anything. Thats how our justice system is designed to work. It is incumbant on the arresting officer to prove you didnt have normal psychomotor skills through observations, both on the vehicle in motion (i.e. swerving, speeding, more than x miles below speed limit, etc, etc) and initial contact w/ driver (i.e. bloodshot, watery eyes, odor of acoholic beverage coming from vehicle, etc) and initial contact with the driver outside of the vehicle (i.e. swaying, leaning for support, falling down, odor of acoholic bev on person - strong, moderate, light, etc, etc.)
All that before you even come close to asking for consent for SFSTs. It is like building blocks - everything builds ontop of the other and the more blocks the easier you prove your point. SFSTs are a whole nother ball of wax, lets just say after all three are complete I can accurately guess your BAC (give or take a few points).

Onto the speeding ticket, does the citation list how your speed was determined (RADAR, LiDAR or pacing), If he was moving the same direction as you (no dept in Texas has same direction RADAR from what I know - please correct if I am wrong) but he most likely paced you and unless he followed you for a distance and can prove his vehicle (at the time of violation) was in proper working order. Catching up to someone means you had to go faster than them to close the gap, it no way can represent how fast they were going.

Hopefully all this information helps you, not that I am advocating drinking and driving or carrying and drinking, I am a firm believer impairment begins with the first drink and have seen first hand the damage someone who only had "a few drinks" can do.... off the soap box

[Originalist]

Check the penal code definition of "intoxication". There is no such thing as a "legal limit". There is a section that makes having a BAC of 0.08 or higher a crime in and of itself (per se rule) and presumtive evidence of intoxication. the definition also mentions a loss of normal psychomotor skills due to alcohol or drugs so even at a 0.025 you could be charged and convicted of DUI and the weapons violation. I have 3 convictions (as a LEO) on individuals who blew well below 0.08 (0.034, 0.019 and 0.68).

That's true, but if he could make the case for intoxication, it would apply to both DWI and PI/UCW. Neither requires anything more than sufficient testimony by the arresting officer that the subject was intoxicated. On the other hand, the 0.08 BAC standard is prima facie evidence of DWI, just like exceeding the posting limit is prima facie of unsafe speed. And, we all know that both standards are subjective; some drivers/carriers are unsafe at 0.025 or 45, while others are safe at 0.12 or 85 (depending on conditions, of course).

The statutory limit just makes it easier to prove; that's practically the definition of prima facie evidence.

There is one practical difference, though: if someone is arrested for PI despite being below 0.08, the officer's testimony carries great weight no matter what the conditions were at the time. The same officer would have a mighty tough time getting a conviction for "unsafe speed" on a driver who was driving below the posted limit, but who didn't have or cause an accident.

I dont know about easier to prove, more so establishes a bar none limit.... To eliminate some subjective arguments.... granite with the right conditions you could beat the presumtive level but would still technically be in violation of the law because of the imposed limit. I agree completely with what you said and that was the point I was trying to make with the carrying of the weapon as well.

[JNMAR]

I'm glad it turned out the way it did and I too think it could have gone a lot worse. Good luck on getting the ticket taken care of.

You mentioned you are younger and in college. From an older guy I would recommend you restrain from drinking and driving and restrain from concealed carry and drinking. If it happens again, you may not be so lucky. Then you will be out tons of money to try and defend yourself. If I drink, I don't drive or carry. I'm not trying to be critical, just offer some advice that might help in the future. Best of luck to you!

[The Annoyed Man]

I'm glad it turned out the way it did and I too think it could have gone a lot worse. Good luck on getting the ticket taken care of.

You mentioned you are younger and in college. From an older guy I would recommend you restrain from drinking and driving and restrain from concealed carry and drinking. If it happens again, you may not be so lucky. Then you will be out tons of money to try and defend yourself. If I drink, I don't drive or carry. I'm not trying to be critical, just offer some advice that might help in the future. Best of luck to you!

And, not to pile on, but I would add one more thing...

I rarely ever consume alcohol anymore — maybe not more than 3 or 4 times a year now and never more than one or two drinks (usually a bottle of cold beer) at a time — but like most people who are moderate in their alcohol consumption, I am fully aware of whether or not it is having much effect on me. Being a largish person, it probably takes a little more to intoxicate me than would be required to intoxicate a mere slip of a man; but even so, there is some boundary point at which the alcohol is beginning to affect me, but I'm not noticing it yet because in addition to the minuscule physical impairment, there is also a minuscule impairment of judgment. That is the only mature way to look at it. Any other attitude falls into the realm of denial, and denial is not truth; it will not set you free. So, the only way to be intellectually honest about the effects of alcohol is to confess that, although we may be largely in control after only one or two drinks, it does have some effect on us, and that effect is a degree of impairment (not enhancement) of both our judgment and our physical coordination, even if those effects are not perceptible to us.

But there is more at stake here than just whether or not you are too impaired to drive a car. A prosecutor who has an unfriendly agenda with regard to CHL will use any evidence of alcohol in your system against you, even if you had only one beer and it was two hours before a self-defense shooting in which you were involved. It won't matter that you were intellectually in control enough to discern a legitimate threat to your safety in which, under any other circumstances, use of deadly force might be justifiable. A hostile prosecutor will take that evidence and use it against you... ...and until proven otherwise, you should consider all prosecutors to be hostile to your interests as a matter of practical application if you are involved in a self-defense shooting. The only sure-fire way to deny a prosecutor that evidence is to not create it in the first place by not having any alcohol in your system when you are carrying a gun.

Before anybody jumps on me about this, let me say that I am not 100% perfect in that application either. Although virtually all of what little alcohol I consume is consumed at home, I have had a beer with dinner in a restaurant, and I was carrying at the time. So I'm not perfect either; but that doesn't change the truth of what I've written above.

As AFCop has testified, he has gotten successful DWI convictions on people who blew significantly less than the legal limit. If you have to shoot somebody in the parking lot of a restaurant where you had one single beer with your dinner, and an LEO on scene asks you to blow into his meter (or takes you in for a blood test, etc., etc.), and any alcohol is found in your system, you are going to be deep in the Kimchi. So any protestations that you were not intoxicated and were in control of your faculties are out the window.

Just my 2¢.

[Bart]

As AFCop has testified, he has gotten successful DWI convictions on people who blew significantly less than the legal limit.

They can get a DWI conviction with zero alcohol consumption. If the driver is intoxicated because of any foreign substance, legal or not, "drug" or not, that's enough. Intoxicated is intoxicated.