5/28/2019Texas Court: Tossing A Cigarette From Car Is Illegal
Texas Court of Appeals not impressed by argument that tossing a cigarette out a car window is not littering if no fire is started.
The Texas Court of Appeals does not want smokers tossing lit cigarettes out car windows. In a ruling Thursday, a three-judge panel overturned a county judge's interpretation of the littering statute that held tossing a lit cigarette could only be a crime if it happened to start a fire.
The distinction was relevant to Michael Lance Wood, who was stopped on February 4, 2018, in Salado. Officer Matthew Hicks suspected Wood might be tipsy based on his driving, and as soon as the officer saw a lit cigarette drop out the window onto the ground, he had the justification he needed for a traffic stop. This led to Wood's arrest for driving under the influence of alcohol (DUI), but Wood challenged the initial stop -- and won -- on the grounds that tossing a lit cigarette from the car was not illegal -- unless it starts a fire.
Bell County Judge John Gauntt referred to an amendment to the littering statute that states it is an offense if the person tosses litter that is on fire "and a fire is ignited as a result." Because this subsection of the littering statute was the most recently enacted section, the judge agreed with Wood's lawyer that the newer, more specific statute controlled the general littering statute. The appellate panel did not agree with this clever reading of the law, finding it sufficient that the officer saw trash fly out the window.
"Based on his observation of an object being discarded, Officer Hicks had reasonable suspicion to believe that an offense had occurred even if, as suggested by Wood, Officer Hicks was ultimately wrong about whether the discarded item in this case fell within the purview of section 365.012 [the litter statute]," Judge Thomas J. Baker wrote for the court.
The appellate judges went further, however, to argue the lower court's reading of the code was incorrect because, in 2011, the legislature added another provision clarifying that discarding a lit cigarette could be prosecuted under either littering provision. The entire littering law also includes a section setting out the fines and penalties for each offense.
"The different levels of punishment indicate that the legislature was attempting to address the additional risk imposed by littering when the litter has been set on fire and is, therefore, consistent with our construction," Judge Baker wrote. "Additionally, construing the statute in the manner suggested by Wood would lead to the absurd result that tossing a lit cigarette from a car window onto a roadway that does not result in a fire being produced is not an offense of any kind even though tossing an unlit cigarette from a window is an offense."
A copy of the ruling is available in a 200k PDF file at the source link below.