Unrestrained Child Defense

[crossfire33]

My question involves a traffic ticket from the state of: Texas

I was driving with my 5 year old daughter. She was buckled in her booster child seat appropriately. I had left her window down and she had leaned out with her hands and head. A police officer from a good distance away saw her and pulled me over claiming she was standing up in the back. I assured him that was not the case and explained she had leaned out the window from her booster seat and I saw her in rear view mirror and told her to sit back which she did. He said it was impossible. I asked my daughter if she had taken off her belt and she demonstrated she had moved the shoulder strap leaned out and when I told her to sit back she had put it back. The officer said she was not restrained appropriately per her own admission and issued the citation. I plead not guilty and requested a jury trial as I feel that I can argue that the intent of the law was not broken. Any thoughts?

Not sure if I am reading it right, but can I use this.............


Sec. 545.4121. DEFENSE; POSSESSION OF CHILD PASSENGER SAFETY SEAT SYSTEM.

(a) This sec-tion applies to an offense committed under Section545.412.

(b) It is a defense to prosecution of an offense to whichthis section applies that the defendant provides to thecourt evidence satisfactory to the court that the defendantpossesses an appropriate child passenger safety seatsystem for each child required to be secured in a childpassenger safety seat system under Section 545.412(a).

since the citation is for............


TRC § 545.412. CHILD PASSENGER SAFETY SEATSYSTEMS; OFFENSE. (a) A person commits an offense if the person operates a passenger vehicle, transports a child who is younger than eight [five] years of age, unless the child is taller than four feet, nine inches [and less than 36 inches in height], and does not keep the child secured during the operation of the vehicle in a child passenger safety seat system according to the instructions of the manufacturer of the safety seat system.

[aardvarc]

The issue isn't that you didn't HAVE a seat (545.4121)....the issue is that the child was not KEPT SECURED (545.412)....according to the instructions of the manufacturer (because the presumption is that the proper application would not have PERMITTED her to get her head out the window).

[crossfire33]

I realize it isn't an issue of whether or not I had a child seat, but my true argument is that the incident was beyond my control. My child was secured according to manufacturer recommendations. She being a normal child moved a part of it and when her behavior that could place her in danger was observed it was quickly addressed and remedied by myself. The intent of the law is to make sure children are as safe as possible in vehicles. The incident was not a violation of what the law had intended.

[aardvarc]

Intent isn't an element to the offense. Even if it were, no one would argue that you INTENDED the incident. But the fact remains that at the time, the child wasn't properly restrained; not through your lack of properly putting her in the seat and securing her, but because AFTER you had done so, the child had defeated (moved) that proper restraint, and was able to get into the position to be observed by law enforcement. I'm not trying to shoot you down or suggest this happened with maliscious intent, but the state's job is to prove the relevent elements of the offense. Intent isn't one, and the child being seen out the window is going to be argued by the state's attorney as prima facia evidence of the child not being secured at the time. The how's and why's are also not an element to the offense.