Page 28 - TPA Journal March - April 2018

stopped on the main traveled portion of the high- the fog line:
way, disabled, or preparing to make a left turn;
(5) to allow another vehicle traveling faster to Q. So, Trooper, tell the Court exactly where my
pass; client was at the time you say you witnessed the
(6) as permitted or required by an official traffic- first violation.
control device; or
(7) to avoid a collision. A. The first violation was just just as Im paral-
leling him, Im off his left quarter. Actually, I usu-
Shoulder is defined as the portion of a highway ally run the license plate at that point. Im sitting
that is: there and you see him fade to the right-hand side,
(A) adjacent to the roadway; crossing the white line.
(B) designed or ordinarily used for parking;
(C) distinguished from the roadway by different But, we conclude that, from the vantage point of
design, construction, or marking; driving in the left lane, next to a vehicle in the
and right lane, it cannot be seen, and there is no way
(D) not intended for normal vehicular travel. to know, that the vehicle in the right lane is touch-
ing the fog line on that vehicles right. Thus, the
Improved shoulder is defined as a paved shoul- dashcam 24 video dispels the Trooper s testimo-
der. ny that Cortez crossed the fog line.

It is a violation to drive on an improved shoul- The trial court found that Cortezs vehicle did not
derthus an officer would have reasonable sus- drive on an improved shoulder because it did
picion to stop a vehicle that was driving on an not cross over the fog line onto the shoulder. The
improved shoulderif it appears that driving on court of appeals agreed, holding that momentarily
the improved shoulder was not necessary to touching the fog line does not constitute driving
achieving one of the seven approved purposes or on the improved shoulder. Although shoulder
it appears that driving on the improved shoulder is defined by statute, the statutory definition does
could not be done safely. not include the term fog line or mention in any
way the line separating the shoulder from the
The record, which includes the dashcam video, roadway.
supports the trial courts finding that, as Cortez
was driving in the right lane of the highway, it is The State argues that, because the fog line is part
not clear that Cortezs tires even touched the white of the shoulder itself, then touching the fog line is
fog line. Thus, regarding the first offense driv[ing] on the improved shoulder. However,
observed by the Trooper, it cannot be determined we decline to give such a broad interpretation to
how close Cortezs right tires came to the white section 545.058(a). Criminal statutes outside the
fog line. The video and the testimony of the penal code must be construed strictly, with any
Trooper reflect that the Trooper had begun follow- doubt resolved in favor of the accused. We
ing Cortezs vehiclea validly registered clean have a duty to narrowly construe statutes to avoid
minivan with two people in itfrom behind a constitutional violation.
because he suspected criminal activity. The officer
then pulled into the left lane, accelerating to seem- But, it is not necessary that we establish a defini-
ingly pass Cortezs vehicle, and that seems to be tive rule regarding whether every fog line painted
where he was when he observed Cortez crossing on a roadway is part of the roadway or part of the

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