The Texas offense of Obstructing Highway or Other Passageway makes it illegal to obstruct a highway or “other passageway” without legal privilege or authority. It also requires you to move if law enforcement makes a “reasonable” request for you disperse during a public safety event (like a riot) or to prevent the obstruction of a highway or passageway. The offense is a Class B misdemeanor.1
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Obstructing a Highway is sometimes offered by state prosecutors as a reduced charge as part of a plea bargain in a DWI case. The penalties associated with an “Obstruction” charge are significantly less than that of a DWI charge, even though both are crimes are Class B misdemeanors. The reason for this is that DWI convictions have minimum criminal penalties that are specific to DWI, and there are non-criminal penalties (like license suspensions, insurance premium hikes, DPS surcharges, etc.) associated with a DWI conviction that are not associated with an Obstructing a Highway.
Have you been charged with Obstructing a Highway or Other Passageway? Call criminal lawyer Paul Saputo at (888) 239-9305.
The Obstructing a Highway offense describes two different scenarios: one in which someone is currently obstructing a highway or other passageway, and one in which someone may not be obstructing anything, but instead ignores an order from law enforcement to disperse or move. The law of the Obstructing a Highway charge is discussed in more detail below.
The offense of Obstructing a Highway is described in Texas Penal Code Section 42.03(a) as follows:
A person commits an offense if, without legal privilege or authority, he intentionally, knowingly, or recklessly:
(1) obstructs a highway, street, sidewalk, railway, waterway, elevator, aisle, hallway, entrance, or exit to which the public or a substantial group of the public has access, or any other place used for the passage of persons, vehicles, or conveyances, regardless of the means of creating the obstruction and whether the obstruction arises from his acts alone or from his acts and the acts of others; or
(2) disobeys a reasonable request or order to move issued by a person the actor knows to be or is informed is a peace officer, a fireman, or a person with authority to control the use of the premises:
(A) to prevent obstruction of a highway or any of those areas mentioned in Subdivision (1); or
(B) to maintain public safety by dispersing those gathered in dangerous proximity to a fire, riot, or other hazard.
Therefore, if you are charged with Obstructing a Highway, the state’s attorneys must prove that you obstructed a highway or one of the other listed passageways, and you can be convicted whether you were acting alone or as part of a group. However, you must have been acting intentionally, or with knowledge that you were doing the obstructing, or recklessly as to whether you were doing the obstruction. You don’t have to know you were committing a crime, you just have to be aware of your actions or be acting recklessly as to the possibility that you were creating the obstruction.
You can also be convicted if you “intentionally, knowingly, or recklessly” refused to move after being told by a police officer (or fireman or anyone else who has the authority to control the premises) to move. However, the request must have been reasonable, so the request can’t have been issued just to harass you. Of course, the reasonableness of the request will ultimately be determined by a jury or a judge after you have been arrested. The state’s attorneys must also prove that you knew or were informed that the person had the authority to tell you to move, and they must also prove that reason for telling you to move was one of those listed in (A) or (B).
The law defines “obstruct” in Section 42.03(b) as “to render impassable or to render passage unreasonably inconvenient or hazardous.” So a passageway will still be considered obstructed even if someone could “technically” pass. For instance, if someone stood in the middle of a busy highway with a gun and demanded that passers-by answer three questions before passing (Monty Python-style), that would be an obstruction in violation of the Obstruction of Highway law.
The Penal Code describes a defense in Section 42.04 based on the First Amendment rights to free speech and the freedom of association.2
If you have been charged with DWI and the state’s attorneys are offering you an “obstruction plea,” (“obstruction” refers to the offense of Obstructing a Highway) it typically means that there is some defect in their case that would make it difficult or impossible to prove that you committed the DWI offense. Many counties refuse to make this kind of offer, but some (including Dallas County and Harris County) will consider it. However, whether or not you should accept this plea bargain is a different question.
If the prosecuting attorney believes the case is so bad that they are willing to plea it down to Obstruction, then you should consider fighting the case in trial. Everyone is entitled to a jury trial, and if the state is unable to prove their case, then a jury should find you Not Guilty. A Not Guilty verdict is always better than a Guilty verdict, even if the Guilty verdict came as a result of you accepting an Obstruction plea bargain offer.
On the other hand, there is always a risk in going to trial. No attorney can promise that a jury will find you Not Guilty. So accepting the plea bargain agreement to an Obstruction plea will eliminate any risk that you are found Guilty of a DWI. This is a valuable outcome, and it has many other benefits including saving a lot of time. It is a decision you should not take lightly and discus with your defense attorney.
1Texas Penal Code Section 42.03(c)
2Texas Penal Code Section 42.04
(a) If conduct that would otherwise violate Section 42.01(a)(5) (Unreasonable Noise), 42.03 (Obstructing Passageway), or 42.055 (Funeral Service Disruptions) consists of speech or other communication, of gathering with others to hear or observe such speech or communication, or of gathering with others to picket or otherwise express in a nonviolent manner a position on social, economic, political, or religious questions, the actor must be ordered to move, disperse, or otherwise remedy the violation prior to his arrest if he has not yet intentionally harmed the interests of others which those sections seek to protect.
(b) The order required by this section may be given by a peace officer, a fireman, a person with authority to control the use of the premises, or any person directly affected by the violation.
(c) It is a defense to prosecution under Section 42.01(a)(5), 42.03, or 42.055:
(1) that in circumstances in which this section requires an order no order was given;
(2) that an order, if given, was manifestly unreasonable in scope; or
(3) that an order, if given, was promptly obeyed.