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The Perfect Pretext for Illegally Stopping People: Unconfirmed Insurance

A traffic stop based only on unconfirmed insurance lacks the reasonable suspicion required for a search and seizure. The 4th amendment of the Constitution protects citizens from unlawful search and seizure. This protection comes to life in Texas under the Texas Constitution, Article 1, section 9.  This is a wide net.  This means that the “ends do not justify the means.”  The police cannot break the law to enforce the law. For example, they can’t illegally enter into a house to search for illegal drugs. They must follow due process. They must have a warrant. For people who are driving, the police must abide by the same laws. They can stop a motorist for probable cause for a traffic violation. If after the stop, the police encounter further illegal activity due to the stop, then they may continue investigating. There are other categories which open the door to police investigation including a voluntary encounter, community caretaking, and reasonable suspicion of a crime. These “catch all” categories justify warrantless arrests, but they are not rubber stamps for the police to engage at will. A voluntary encounter is when a citizen, by their own free will and volition, engage the police.

Image result for police stopping a car creative commons

Community caretaking is not law enforcement code for a free for all investigation. Rather, it requires consideration of four factors in Texas[i]:
 
(1) the nature and level of the distress exhibited by the individual;
 
(2) the location of the individual;
 
(3) whether the individual was alone and/or had access to help independent of that offered by the officer;  and
 
(4) to what extent the individual, if not assisted, presented a danger to himself or others.
 

Courts are to weigh the circumstances to determine if a stop or intervention by law enforcement is justified.

Constitutional considerations

unconfirmed insurance

Even if you have insurance, it may show up as “unconfirmed” if the system has not updated yet!

The Declaration of Independence states, “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”  The colonists despised the British abuses of power. They added the Bill of Rights to the Constitution to protect our citizens from such abuses, including the government seizing and invading at will without due process. The legal process mandates that when violations of law occur, we throw out the evidence resulting from the violation. This means, at times the “guilty” go free. This is necessary to ensure protection for all. It was Ben Franklin who said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

What is the problem with ‘unconfirmed insurance?’ What is it?

The problem with “unconfirmed insurance stops” is that there is no proof.  An officer can allege that the sole basis for the stop was that their computer system showed a motorist’s insurance to be “unconfirmed.” Also, these systems can be unreliable. For example, an insurance company’s website can go down. This is so problematic that in Texas DPS’s July 2004 newsletter[ii] , they warn officers, “It is important to note that DPS does not believe the law allows the database to be used for probable cause in stopping a vehicle. The vehicle would first have to be pulled over for a separate traffic violation.

The Court in Contreras[iii] ruled that standing alone, an insurance check of ‘unconfirmed’ would not provide reasonable suspicion for a stop. There must be some foundation for the conclusion of unconfirmed insurance to justify a stop Evidence that clarifies the ambiguity of an ‘unconfirmed’ return, such as the definition of unconfirmed, the source of the information in the system, or showing the accuracy and timeliness of the system, must first be presented to justify the stop It is important that Courts continue to recognize that allowing the police to stop a vehicle on alleged “unconfirmed insurance” is carte blanche for lawless stops. We should not tolerate this.

Mimi Coffey – Experienced DWI Defense Lawyer in Dallas County

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[i] Wright v State, 7 S.W.3d 148 (Tex. Ct. Crim.App. 1999)

[ii] TexasSure Cracks Down on Insurance Violaters, The Chaparral, July 2004, pp. 1, 4.

[iii] Contraras v. State, 309 S.W.3d 168, 172-3 (Tex. App.-Amarillo 2010, pet. ref’d)+

About Mimi Coffey

Mimi Coffey
Mimi Coffey is a trial attorney with 24 years experience. She is the founder of The Coffey Firm, serving Dallas, Tarrant and Collin counties. She is board-certified in DWI by the National College of DUI Defense (NCDD) and is a Regent of the NCDD. Mimi Coffey also listed on several “top” directory listings such as DWI attorneys Tarrant County, DWI Lawyer Fort Worth, DWI attorney Dallas County, DWI attorneys Collin County and DWI attorneys Parker County. I am very involved with the community DFW caring DWI lawyer, Texas Tech School of Law foundation and I enjoy using the skills I have developed to give back to the community. She has also appeared numerous times as a legal commentator for CNN, National Fox News, as well as local Dallas/Fort Worth stations on DWI-related stories. She is also a frequent speaker at both national and statewide seminars. She is a prolific trial attorney with a proven trial record. She has tried over 300 cases, with 80% of them being jury trials in her 18-year career. Her success includes everything from .21 breath tests, blood tests to 3 car accident cases just to name a few. Mimi’s cases have also made good case law for the State of Texas. For example, in Tarvin v. State, it was found that weaving within your own lane was not a traffic violation. In Lajoie v. State, the courts determined that the defendant’s request to have his attorney must be suppressed as opposed to used as evidence of guilt. She is the author of Texas DWI Defense: The Law and Practice. She is also the author of three nationally-published articles and four statewide articles. Mimi has twice attended Indiana University’s Borkenstein Course for state toxicologists both on alcohol and drugs. She has also completed the NHTSA SFST Course, SFST Instructor Course and the 12-Step DRE Mini-Course Program. She is also one of the first attorneys in the United States to attend the Axion Labs Gas Chromatography Training. Her minor in college was Geology lending her a comprehensive and disciplined scientific mind when it comes to scientific and mathematical issues such as blood and breath testing. Mimi has won the President’s Heart of a Champion Award presented by the Texas Criminal Defense Lawyers Association (TCDLA) numerous times. Mimi also led the effort to get the State Bar of Texas’ Board of Legal Specialization to recognize the NCDD’s DWI Certification. Mimi has been active in 4 legislative sessions in fighting against bad DWI laws. Her efforts prevented the breath/blood test refusal as being a separate crime. She has advocated for true deferred adjudication for DWI. Mimi also sued a Dalworthington Gardens police officer for illegally drawing blood. Since her lawsuit, the 2nd Court of Appeals ruled against police officers drawing blood. (The Court of Criminal Appeals overturned this). Mimi also sued the Texas Department of Public Safety for its double jeopardy surcharge program. Since the initiation of her suit, Texas DPS has instituted amnesty programs based on one’s earning potential.

If you would like to contact the author, please visit: https://www.mimicoffey.com


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