August 2007

Most mornings aren’t quite this fun. I had a DWI client set for a PreTrial hearing today, and he had what I thought was a pretty good case. The officer had previously testified at the ALR license hearing that he had pulled my client over after “running his license” and it had come back with expired registration. My client committed no other violations. When the officer told him why he had activated his overheads, the client points out that his registration was current.

Of course, the officer was behind my client the whole time, and was ‘relying’ on the information he got from dispatch.

There is what’s known as a “good faith exception” to the requirement that an officer has reasonable suspicion to detain someone (a reason to come up and start harassing them in the first place). The seminal US Supreme Court case is an example where the officers relied on a warrant, but someone had accidentally typed the wrong address. Upon bursting in to the wrong house, they went on to find contraband (if I remember correctly). SCOTUS said that since they were acting in “good faith” (hadn’t made the error deliberately or even themselves), that the government was entitled to prosecute the defendants.

That’s all well and good, but back to my client, let’s face it: this is still something a jury is going to think is a bogus stop. That has to affect their ultimate determination about the value of the State’s case.

Also, the officer had testified at the driver’s license suspension hearing that he runs these checks all the time, and that it wasn’t unusual for the information he received about registration by way of dispatch to be incorrect.  I wasn’t expecting that answer, but I liked it. One of the beauties of  cross examination is that ‘probing’ can lead to unexpected results.

I felt like it was potentially a good issue to put in front of the judge, and I sure wouldn’t plead someone to these facts without at least having a hearing, even if the case went ‘downhill’ after the stop from the defense perspective.

And in the specific case, in what turned out to eventually be irrelevant, my client had politely declined to do the officer’s proffered Field Sobriety Tests. Perhaps most harmful to the state’s case: the officers had neglected to turn off their mikes when they said, post arrest, “Guilty or Not Guilty, at least he’ll have to pay a lawyer $5000”. (I wish I’d known I should have charged that much for a pretrial fee.)

So my intent was to litigate the Motion to Suppress, based on the obvious problems with the case. And since I had the transcript of the ALR hearing, I felt I had an additional argument to make: since the officer previously testified that he frequently got ‘bad information’ from dispatch about whether folks are properly registered, this didn’t meet the so-called ‘Good Faith Exception’.

When I arrived in court, the Prosecutor had a manila envelope with something inside it attached to her Police Report. I asked her to look at it and tell me what it was (I assumed it was some sort of Attorney Work Product I wouldn’t be privy to.) Lo and behold, it was the CAD audio tape that I had requested months earlier – the actual police to dispatcher transmission of the License Check that the officer had run.

The court reporter allowed me to listen to it on her audio tape machine back in her office, and, tada, we hear the dispatcher report to the officer that my client was “Clear and Current”, meaning no warrants, and no out of date tags. The officer’s original excuse that he unintentionally pulled over a citizen for no valid reason (because of bad info from dispatch) was now completely shot.

After hearing the tape for herself, the Prosecutor agreed that this was an illegal detention and arrest, and agreed to dismiss my client’s case outright. It’s unfortunate that I have to complement them on that action, but it’s true that some prosecutors would have tried to still find a way to justify this blatantly illegal arrest.

Of course, sometimes it’s ‘easier’ for the State to dismiss a case, even a DWI, than to risk ‘embarrassing’ the officer.  Best possible result for my client, but not necessarily for the public.

One more sad fact I suppose: I’m sure this sort of thing happens at least 10 times as often as I am able to actually prove that it does. Oh well, it’s fun getting to play detective every once in a while.

[N.B. I wrote this entry over a year ago on a ‘test blog’ I put up when I was first getting interested in blogging.  So, it wasn’t actually this morning, but you get the point.]

In Texas DWI cases, there’s almost always a video tape of your client. It will include some driving, and many times the entire substantive interaction between the arresting officer and the defendant. 

And that’s going to end up being a better record of how someone did on the Field Sobriety Tests than the officer’s recollection.

True, the initial portion of the traffic stop, i.e., the reason for the initial detention may not be recorded.  For example, the Austin DWI Task Force officers drive cars equipped with video cameras, but they only activate once the overheads have been turned on.

Since the officer isn’t going to activate his overheads to pull someone over until after he sees a traffic violation, unfortunately this isn’t caught on tape.

But wait, you say… no video, means no evidence right? And if they can’t prove the traffic violation, then the judge will have to grant a Motion to Suppress and throw the case out.

Not so fast.

There’s no rule requiring the State to present videotape evidence in a DWI, or in any other type of criminal case for that matter. In fact, in most jury trials, for non-DWI offense, there is no video tape evidence of any kind.

Evidence usually comes from the witness stand in the form of oral testimony from one or more witnesses, and that may be it.

How many times do you think the State has to produce a videotape of somebody actually committing a murder to convict them of it? I’m sure it’s happened, but it isn’t all that common.

I’m a big fan of videotape. At least the officer will be confined to the facts of the case, rather than feel free to add incriminating statements or other evidence that can’t be disproved.

I’m also glad to see that Texas DPS has recently gotten a new video machine in some of their vehicles. Apparently, it works like a DVR. It is constantly recording, and it keeps several minutes in the pipeline, so to speak. Then, when overheads are activated, the machine actually saves several minutes worth of video prior to the lights coming on.

Yes, this often leads to videotape evidence of my client committing that traffic violation that the DWI officer is claiming. But the judge was likely to take his word for it anyway, if there hadn’t been video.

Consequently, not having the video of the driving is almost always a losing issue for the defense. But recently, I litigated a Motion to Suppress where the officer had written in his report that my client had ‘Failed to Maintain a Single Marked Lane’.

And the video showed the Trooper’s approach of the vehicle, and my client’s tires barely crossing the line once. But we could also show, due to the DVR-style video, that there was no other traffic around, and that the movement wasn’t unsafe to others.

Based on that, I made the argument that the State had failed to prove reasonable suspicion to detain because the video evidence didn’t meet the standards of the Hernandez case. [Short version: Defendant doesn’t commit Failure to Maintain a Single Marked Lane in a case where he crossed the line once, by 18 inches, and did not cause any safety hazard to others. The case itself has been watered down significantly since it was issued in 1998, but the facts on my video were actually remarkably close to the original case.]

The judge took the case under advisement, and I don’t have a ruling yet. But without that extra bit of videotape evidence, I wouldn’t have been able to even make a credible argument.

I doubt the officer would have admitted that it was only one time, that no other cars were around, that the movement wasn’t unsafe, etc.

The ‘extra’ videotape in that case may end up saving my client from a DWI conviction.