Lothrop, Donald Adams
2012 Tex. Crim. App. LEXIS 647
| Tex. Crim. App. | 2012Background
- Lothrop drove west on Highway 114 in Boyd and passed a slowing vehicle at a railroad crossing by using an improved shoulder.
- Officer Estel, traveling east on the same highway, observed the shoulder passage and stopped Lothrop for illegally driving on an improved shoulder.
- Lothrop was arrested for driving while intoxicated; he moved to suppress all evidence from the traffic stop, arguing no reasonable suspicion existed.
- At suppression, Estel testified only to seeing the shoulder pass and initiating the stop based on that behavior; he did not testify to danger or other violations.
- Lothrop contended that driving on a shoulder was lawful under Transportation Code 545.058(a), which lists seven permissible purposes for shoulder use.
- The Second Court of Appeals upheld the conviction, holding shoulder driving prima facie an offense and treating the statute’s 'defenses' as self-defense-like burdens, requiring proof of safety and necessity plus the enumerated purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is shoulder driving under 545.058(a) a prima facie offense? | Lothrop: driving on shoulder can be legal if within seven purposes. | State: shoulder driving is inherently an offense subject to defenses. | No; interpretation shows permissible use under seven purposes if safe. |
| What does 'necessary' mean in 545.058(a)? | Lothrop: 'necessary' is a standalone requirement. | State: 'necessary' must be read in context of the seven purposes. | Contextual reading; 'necessary' aligns with achieving a permissible purpose and safety. |
| Did Estel have reasonable suspicion to stop based on shoulder use? | Lothrop: statute permits the conduct; no basis for suspicion. | State: observed behavior could indicate a policy violation. | Estel lacked reasonable suspicion; the stop was unlawful. |
Key Cases Cited
- Lothrop v. State, 2011 WL 3835726 (Tex. App.-Fort Worth 2011) (precedent cited for appellate treatment of 545.058(a) defenses)
- Prudholm v. State, 333 S.W.3d 590 (Tex. Cr. App. 2011) (statutory word purpose and ordinary meaning applied)
- Dowthitt v. State, 931 S.W.2d 244 (Tex. Cr. App. 1996) (every word in statute should be given effect)
- Castro v. State, 227 S.W.3d 737 (Tex. Cr. App. 2007) (reasonable suspicion standard articulated)