What Every Texas Driver Should Know About Pretext Stops


Everyone knows the police can stop you for speeding, driving recklessly, swerving, running a red light, or committing any other type of moving violation. What people rarely understand is when the police cannot stop you. Texas DWI attorneys frequently see clients who were charged with DWI due to a stop that never should have taken place. Let us take a look at this concept known as a “pretext” stop.

What Is A Pretext Stop? 

A pretext stop can best be described as any time a police officer uses a minor traffic violation as a “pretext” for stopping that driver to look for evidence of more serious crimes. A good example is where a police officer pulls a driver over for making an illegal u-turn, yet he is really looking for evidence of intoxication.

When Do Pretext Stops Usually Happen? 

There are a lot of proper and improper ways for a pretext stop to occur, but one of the most common examples can be found in the early morning hours, just as bars are closing. A police officer may regularly patrol an area where several bars are closing. He drives up and down the road looking for patrons leaving in their vehicles. The police cannot make a general assumption that all bar patrons are drunk; therefore, they cannot simply pull over every patron that leaves the bar in a vehicle. What they can do, however, is follow a driver for a while and observe the driver. Once the driver violates a traffic rule, no matter how minor, the police have a legal right pull the driver over. The officer in this scenario hopes that upon interaction with the driver, the officer will observe some further evidence of a crime being committed – i.e. intoxication or drugs.

Are Pretext Stops Legal?

Yes. In most cases, the U.S. Supreme Court has upheld the constitutionality of pretext stops. Under the landmark decision, Whren v. United States, 517 U.S. 806 (1996), the country’s highest court determined that a temporary stop based on a traffic infraction does not violate the driver’s Fourth Amendment rights. However, this rule is not universal. There are a few exceptions:

  • The Infraction Must Have Actually Occurred

Although the law permits police officers to stop you for breaking even the smallest traffic laws, the fact remains that you must have actually broken the law. In some cases, an overzealous officer may suspect you are intoxicated and pull you over, only to discover you are indeed intoxicated. The desire to protect the public and arrest you for impaired driving is often too strong to resist. At this point, the officer may try to come up with a traffic infraction after the fact. Often, the most common “pretext” is that the officer observed you swerving and crossing the center lane.

Many police cruisers are now outfitted with dashboard cameras. You and your attorney are entitled to request a copy of such video evidence prior to your trial. Sometimes the dash camera will show that you were driving in a perfectly safe and legal manner. Therefore, the officer lacked any probable cause to make the stop, and any evidence discovered becomes inadmissible.

  • The Officer Must Not Have Been Instrumental In Creating The Violation

Less common, but equally unlawful, some officers will tail a driver for miles, just waiting for an infraction. In some cases, police officers have been known to tailgate a driver until the driver speeds up or changes lanes to get out of the officer’s way. The officer may change lanes several times in an attempt to get the driver to make a critical mistake, such as failing to signal or increasing speed a mile per hour over the limit. This type of behavior is not permissible and provides the driver a strong defense against a pretext stop.

  • Race, Age, Or Other Discriminatory Factors Cannot Be Lawful Pretexts

Racial profiling or similar discriminatory practices are strictly prohibited. In 2010, Arizona passed SB 1070, which amended that state’s criminal code, thereby permitting officers to stop anyone they “suspect” of being an illegal immigrant. Clearly this presents a strong potential for officers to pull over American citizens simply due to their racial appearance, which constitutes a Fourth Amendment violation. Fortunately, Texas does not have this type of law. The ACLU has an informative article about this subject, but in general the police in Texas may not simply pull you over due to your age, race, or any other protected status.

If you are arrested for DWI in or around Harker Heights or Austin, you need an aggressive and skilled DWI lawyer who can fight for your rights. With over 20 years of experience protecting the rights of Texans, Bobby Dale Barina is a strong advocate for his clients. Call for a free consultation today.

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Bobby Dale Barina, LLC is a full service law firm where attorneys with their extensive experience provide strong & Aggressive defense against Family & Criminal cases.