Austin DWI Lawyer & Attorney : Jamie Spencer Law Firm : Serving Travis, Williamson and Hays County

Surfing the blogosphere I run across a post entitled “Examination Blanking Out” by Razeet:

Test anxiety is normal and can even help us function well in testing situations. The problem develops when the level of nervousness is so high that it interferes with what one is there to do.

As a result, with two people taking the exact same test, one might be calm, cool and collected, while the other is a pile of perspiration and blanking out.

Now, his post doesn’t have anything to do with Field Sobriety Tests; more likely he’s talking about studying all semester, and cramming for an exam, and still not doing well.

But DWI lawyers should remember that this phenomenon, that ‘some folks do better than others on tests’, and for a variety of reasons, is a well known fact. Indeed, it should be the theme of most DWI breath test refusal trials: starting in jury selection, bolstered by the arresting officer’s own testimony, and repeated in closing.

A series of questions I use at the ALR hearing to set this defense up goes something like this (answers left out – I don’t really care if the officer disagrees):

• Officer, you agree that folks in the general public vary greatly in their ability to perform physical tasks?
• Some people are gifted athletes, and some people are super klutzy?
• Most people are somewhere in between?
• Like most characteristics, there’s probably a bell curve of natural physical abilities?
• And you’d never met my client before that night?
• And you don’t know where on that bell curve he might fall?
• He might be an Olympic athlete, or he might be uncoordinated, you just don’t know?

I say I don’t care what the officer answers, because a jury will know that the truthful answer to all these questions is 'Yes'. If an officer disagrees, or ‘weasels’ on one of these basic truths, you may even be better off. You can certainly argue that he graded too hard in his evaluation of your client.

The basic point is this: everyone knows that ‘some folks do better than others’ on all types of tests…including DWI field sobriety tests.

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The primary student manual “DWI Detection and Standardized Field Sobriety Testing” published in February 2006 by NHTSA spends less than half a page on its subsection “Visual Detection of DWI Motorcyclists”. It’s in Chapter 5, Phase One “Vehicle in Motion” immediately after the section on visual cue descriptions for auto motorists.

However, in March of 2005 NHTSA published a brochure on the subject entitled “The Detection of DWI Motorcyclists”.

From both sources, the list of driving cues that officers are trained to look for in Motorcycle DWI/DUI cases are listed as either excellent (above 50% chance) or good (30-50% chance):

Excellent Cues

• Drifting during turn or curve
• Trouble with dismount
• Trouble with balance at stop
• Turning problems
• Inattentive to surroundings
• Inappropriate or unusual behavior
• Weaving

Good Cues

• Erratic movements while going straight
• Operating without lights at night
• Recklessness
• Following too closely
• Running stop light or sign
• Evasion
• Wrong way

Good fodder for DWI lawyers in motorcycle cases where the defendant is stopped ‘only’ for speeding (which is pretty common)…page 5 of the brochure:

Motorcyclists stopped for excessive speed are likely to be driving while intoxicated only about 10 percent of the time (i.e., 10 times out of 100 stops for speeding). But because motorcyclists tend to travel in excess of posted speed limits, speeding is associated with a large portion of all motorcycle DWI arrests.

In other words, while only a small proportion of speeding motorcyclists are likely to be considered DWI, the large number of motorcyclists who are speeding results in a large number of DWIs, despite the relatively small probability.

In cross examination, this can be used if the stopping officer testifies that speeding is a sign of intoxication (which belies the common sense of the jury as well).

Also, the officer should be crossed on all the things your client did right: no drifting, no trouble dismounting, etc.

DWI lawyers should consider asking the officer whether the dismount itself is a useful sobriety test. Many officers will openly scoff at the notion…that’s fine. Prod him to insist that only the NHTSA field sobriety tests are appropriate for evaluating the likeliness of intoxication or impairment.

Then have him read this paragraph from pp7-8 from the NHTSA brochure:

Trouble with Dismount

Parking and dismounting a motorcycle can be a useful field sobriety test. The motorcyclist must turn off the engine and locate and deploy the kickstand. The operator must then balance his or her weight on one foot while swinging the other foot to dismount. But first, the operator must decide upon a safe place to stop the bike. Problems with any step in this sequence can be evidence of alcohol impairment.

And having absolutely no trouble with the dismount is at least some evidence of a lack of impairment, correct Officer? (Doesn’t matter how he answers; the jury gets the point.)

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If you have been arrested for DWI in Texas, chances are that your Driver’s License was confiscated before you were released from jail. In that case, you should also have been given several other pieces of paperwork, including a form called the DIC-25.

The DIC-25 is titled “Notice of Suspension” and “Temporary Driving Permit”. Your license is not immediately suspended, as many folks think. Instead this piece of paper serves as your temporary driver’s license. (In Austin DWI cases, the forms are usually yellow.)

About halfway down the page, in a box is some text:

If your Texas driver license was confiscated, this document will serve as your temporary dirving permit. It is subject to the same restrictions and endorsements as your Texas driver license. If you hold a commercial driver license, this permit authorizes the operation of commercial motor vehicles. This permit does not provide you with any driving privileges if you do not have a Texas driver license or if your Texas driver license is expired, suspended, revoked, cancelled, or disqualified. This permit is valid for 40 days from the date of service shown below. If you request a hearing, this permit will remain in effect until the administrative law judge makes a final decision in your case.

So this form is a substitute for your Texas DL. But I usually advise clients to run down to DPS and apply for a Texas ID card. It looks virtually identical to a DL, and you don’t want to wait until you need to get on an airplane to figure out that picture ID’s are useful.

Also, it’s common for folks to ask me whether this permit is good beyond the 40 days. The answer is in two parts:

(a) No, it is only good for 40 days, if you did not request a hearing to contest the suspension within 15 days of the arrest.

(b) If you requested a hearing, then, as the text says “the permit will remain in effect until the administrative law judge makes a final decision” in the ALR hearing. If you hired a DWI lawyer within the time limit, they will usually do this for you. (Although, you should probably ask.)

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Police Officers are trained to look for certain ‘common’ signs of intoxication when evaluating a suspect for DWI. Some of these are thought to be so frequently exhibited in DWI cases, that the local police agencies in Austin have pre-printed forms for probable cause affidavits so that they can quickly check off boxes - and, then, presumably, move on to the next arrest.

The Austin Police DWI affidavit form includes checkboxes for:

• Odor of Alcohol: Strong, Moderate, Faint, None
• Eyes: Bloodshot, Watery, Glassy, Dilated, Constricted
• Speech: Mumbled, Slurred, Confused, Not Understandable, Mushmouthed, Stuttered, Fair, Good, Accent, Thick Tongued
• Balance: Wobbling, Falling, Swaying, Unsure, Needed Support
• Attitude: Excited, Hilarious, Talkative, Uncooperative, Profanity, Polite, Sleepy, Combative, Indifferent, Cooperative, Insulting, Cocky
• Walking/Turning: Falling, Swaying, Staggering, Stumbling

Other than “No Odor of Alcohol,” “Fair/Good” speech, and “Polite/Cooperative” attitude, all the others are arguably signs of intoxication. And the more that are checked off, the more the State believes they have a strong case. 

But aren’t there perfectly good reasons why someone could exhibit several or many of these that aren’t reliable indicators of intoxication? Of course.

Some of the reasons other than intoxication include medical conditions, personality traits and physical characteristics/abilities of each individual. I will explore each of these in upcoming posts.

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Texas law allows a person arrested for DWI to request an ALR hearing “in person” or “by phone”. Is it better to conduct an administrative license revocation hearing live/in person or by telephone?

The best practice is to request a conduct a live/in person hearing. Honestly, I can think of no exceptions to this rule.

There are two main reasons to have a hearing: (1) to keep your client’s license from being suspended in the first place, and (2) to gain an opportunity to cross examine the stopping and arresting officers without the criminal prosecutors present.

A substantial portion of ALR wins comes by default; that is, one of the requested and necessary witnesses fails to show up. Allowing DPS to proceed telephonically greatly increases the chances that an officer will be available. Obviously, it’s much easier for a police officer to literally “phone in” his appearance, than it is to come down to court and testify in person.

But even in cases where you know the witness will show up, it is still the best practice to conduct a live cross examination. 

Sometimes a client comes to see me the day or so after their arrest, and I almost immediately know by looking at their paperwork that the officer will show up at the ALR hearing. For example, the officers on the Austin DWI Task Force are known for always appearing. I have personally cross-examined most of them more than 20, 30, and sometimes 40 times.

But, again, it’s still better to request that the hearing be conducted in person rather than over the phone.

Reason #2 for having the hearing in the first place is seriously compromised when a DWI lawyer decides to just “stay in his office” and “do it on the phone”.

One of my jobs at an ALR hearing is to evaluate the strength of the State’s case against my client. The officer’s demeanor, appearance, and overall savvy on the stand can not be effectively gauged over the phone. On many occasions, what I initially suspected was a difficult case for my client to win becomes much better after the ALR. The truth is that some folks make better witnesses than others even if the substance of their testimony is identical.

Cross-examination is at least as much art as science, and only a face to face meeting between the DWI lawyer and the arresting officer will accurately reflect what that same testimony will sound like at trial.

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Article 17.441 of the Texas Code of Criminal Procedure requires a magistrate to order a defendant being released on DWI 2^nd or Felony DWI bond to install an ignition interlock device on any vehicle he owns or has access to.

What’s an ignition interlock device? From the statute:

…a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator

The condition will be imposed on anyone arrested for DWI with a prior conviction, whether the defendant is released on personal bond, cash or cash deposit bond, surety or bail bond. In Austin, the judge that orders the condition will require a meeting with the County Pretrial Services office within 24 hours of release. The person is then given 30 days to show proof that the interlock has been installed.

Failure to install the device will result in two consequences. First, the bond will be revoked, which will result in a warrant for the person’s arrest. And second, if DPS does not receive proof of compliance, along with another fee, the person’s license will be suspended until such proof is shown.

(Click for contact information about the 3 companies that Austin DWI defendants can use to install an interlock device on their vehicle.)

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The day after I post about possible quotas in Austin DWI arrests, Lawrence Taylor notes that some officers get rewarded for making arrests, whether they result in convictions or not. Since Lawrence is the guru of DUI/DWI blogging out in California, I like to think great minds think alike, and that we are on the same wavelength. But, sticking to the theme, Skelly takes the cake by finding this example: the officer who makes the most DWI arrests wins a Pizza!

Allen Trapp at Georgia DUI Blog comments on a real life example of the low-carb diet producing false alcohol readings. [Low carb dieters generate increased levels of acetones, which the Intoxilyzer 5000 mistakes for alcohol.]

Allen and his blogging partner DUI Rob both comment on the FDA warning requirement for Ambien, Lunestra, etc in Sleep Driving post 1, and Sleep Driving post 2. And for those who thought my recent posts about Ambien DWI, and the Sleep Driving Defense were figments of a defense lawyer’s imagination…please read a well reasoned prosecutor’s perspective on the same issue. (Maybe DWI lawyers aren’t making it all up.)

Wretched of the Earth talks about voir dire in his first Felony DWI trial, specifically the number of folks on the panel who already had friends and family in the system. [And congrats on the win, as well!]

Orange County DUI Blog points out the ineffectiveness of roadblocks and checkpoints.

Kentucky DUI Lawyer Stephen Isaacs talks about the legislature’s attempts to quantify per se levels for DUI/ driving under the influence of drug cases.

Austin criminal defense attorney Keith Lauerman is often in the news for his high profile cases. Give him credit… first he blogs on the new Austin Police Department policy of taking blood by force in DWI cases. And then he follows it up with a post about the age old question…but how would you feel if you were on the other side?

Penny Umstattd-Cope has been ‘blawging’ for some time now at the Missouri Business Lawyer, and the Missouri Divorce Lawyer. She’s added the Missouri Criminal Defense Lawyer to her repertoire, blogging about, among other things, a recent decision by an appeals court denying a drivers license suspension based on the trial court’s determination of insufficient evidence of DWI.

And finally, let’s welcome Lawrence Koplow of Arizona DUI Central to the blogosphere as he writes his first post about points on Arizona’s Drivers Licenses and suspensions. [And kudos to Kevin and the usual gang of suspects at LexBlog for another good looking and professionally designed ‘blawg’.]

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“Does the Austin DWI Task Force have arrest quotas?”

I get asked this semi-frequently by folks recently arrested for DWI. I can tell you that the officers will testify, under oath, that there is not.

And, depending on the definition of the word “quota”, that may or may not be true.

It’s almost definitely true that individual officers are not told “You need to make X number of DWI arrests tonight,” or “You must average Y number of arrests per week/month,” etc.

But I do remember** former Austin police chief Stan Knee being quoted in an Austin American Statesman article, March 4^th, 2006 as saying:

“This community needs to take seriously driving while impaired…We will make 6,000 DWI arrests in 2006.”

Bear in mind that the article itself had just acknowledged that fewer than 6000 DWI arrests were made in Austin for 2005. I think you can make a pretty good argument that the chief of police was coming pretty close to not just predicting, but mandating an increase in arrests.

What’s the difference between telling one individual officer “You must make an average of 5 DWI arrests per shift,” vs. predicting not only an increase, but a threshold level of expected arrests for the department as a whole? Just a little math and some semantics, I suppose.

[**I usually link to sources, but unfortunately, the Statesman free archive does not go back far enough. Anyone caring to pay a “small fee” to access the article can do so here.]

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David Rauf’s article in today’s Austin American Statesman “Lawmakers seek to curb drunken driving; Opponents worry about racial profiling” highlights 3 pieces of DWI legislation now pending:

#1) DWI Roadblocks/Checkpoints

#2) Ignition Interlock for First Time DWI in Texas, and

#3) Creating a Presumption of Guilt for DWI in Texas

The legislators in Austin are presented with multiple bad ideas on the DWI front – and I’ve had to break them up into 3 separate posts.

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From today’s Austin American Statesman article about an unsuccessful attempt to reverse the presumption of innocence for DWI cases in Texas:

A third proposal would have simplified the method used for determining a person's blood-alcohol content at the time he or she was driving.

The proposal, House Bill 915, by Rep. Jimmie Don Aycock, R-Killeen, would have specified that if a driver's blood-alcohol content is higher than the legal limit of 0.08 within 90 minutes of being pulled over, the driver would be considered intoxicated.

"Right now, the problem is you have to prove they were intoxicated while driving," Aycock said. [Emphasis Mine]

So it’s a problem that the State has to meet their burden of proving guilt beyond all reasonable doubt? A problem that can be fixed with some legislation?

Fortunately, this bill was voted down by the House Law Enforcement Committee. I’ve written previously about the “Rising BAC defense” that is available to some DWI defendants in Texas. Being over .08 at the time of the breath test does not necessarily mean you were over .08 at the time of driving.

But some lawmakers objected to “forcing” the State to prove their case, so they attempted to create a presumption that any breath test within 90 minutes of driving would automatically do the trick.

David Gonzalez, counsel for TCDLA and also a local Austin DWI lawyer hit the nail on the head when he…

…said the bill would create a presumption of guilt.

"What that really means is, we need to make it easy for convictions, and when science and other things get in the way, let's disregard them," Gonzalez said.

Politicians can’t change the science of breath or blood alcohol testing…and Texans should continue to object to illogical manipulations of DWI statutes.

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From today’s Austin American Statesman:

House Bill 934 by Rep. Linda Harper-Brown, R-Irving, would require first-time offenders in driving while intoxicated cases to use an ignition interlock device in their vehicles. The driver must blow into the device to have his or her blood alcohol content measured. The car will not start if the driver is legally intoxicated.

Under current Texas law, judges are allowed to use discretion in requiring ignition interlock for first-time offenders.

Opponents of the measure say the bill will strip judges of their discretion.

Fellow Austin DWI Attorney Ken Gibson recently commented on this idea on KXAN’s coverage of this bill:

Gibson said it's the repeat offenders who need ignition interlocks, and requiring them for first-time offenders is a result of aggressive lobbying by the manufacturers.

"Ignition interlock is a multi, multi-million dollar business, and to require everybody to have them in their cars is going to increase their business by a thousand times," Gibson said.

Ken’s right, of course, that the folks that make money installing Ignition Interlocks lobby hard for these types of measures.

And I can add this: most of the people that come to my office after an Austin DWI arrest aren’t alcoholics. Putting aside for now those that aren’t guilty of DWI to start off with, many are primarily my clients for making a one time bad judgment.

And don’t forget that the costs and penalties involved for first time DWI convictions in Texas are already punitive. This pending legislation is a classic example of politicians pandering to knee-jerk reactions, rather than real problems.

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From today’s Austin American Statesman:

Senate Bill 59, written by Sen. Judith Zaffirini, D-Laredo, gives police the authority to set up temporary sobriety checkpoints. The roadside barricades haven't been legal in Texas since 1994. A state court of appeals ruled them unconstitutional because the Legislature had not developed guidelines to ensure they were being conducted legally.

The bill would add (literally) a new chapter to the Texas Code of Criminal Procedure entitled “Sobriety Checkpoints”. This sort of legislation often sounds like a good idea at first…I mean, let’s get those drunks off the roads, right?

But make no mistake about though…this bill will authorize the police to stop vehicles without reasonable suspicion or probable cause.  Non legal mumbo-jumbo translation?... The cops will be able to stop you for any reason, or for no reason at all.

They will then be allowed, after the fact, to “develop” probable cause to believe that an offense has been committed.

Unfortunately, the US Supreme Court has long ago ruled that DWI roadblocks can be constitutional, but the Texas Court of Criminal Appeals has so far not allowed them. This is truly a slippery slope folks…be careful what you wish for.  It's not to late to tell your representatives you oppose this.

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Dr. Greg Kane at Med-Mal Experts has published an excellent 3 part series on the flawed math that NHTSA uses to calculate “accuracy rates” for the Field Sobriety Tests. These papers were originally published in the Colorado Trial Lawyer’s Association magazine Trial Talk, and are now reproduced on Kane’s website “The predictive value of the NHTSA’s Standardized Field Sobriety Tests”.

Ultimately, Kane answers the question that all DWI lawyers need to be asking: What does it really mean when the officer testifies that “failure” of the field sobriety tests means there is a 93% chance that the defendant was intoxicated? How did NHTSA come up with that number…and is it meaningful?

From Kane’s site:

Around the country, DUI defense attorneys form organizations, give seminars and share trial strategies to overcome FST evidence. Prosecutors do the same, from the other direction. The two sides bicker about mechanics. Did the officer follow procedure exactly? Did the officer consider medical conditions that cause incoordination?

What no one does, as far as I can tell, is doubt the NHTSA "validation" contractors' analysis of what a mechanically meticulous coordination test actually implies about alcohol impairment. The driver failed the FST. No one asks, "Exactly what does that mean?"

I have to admit that he’s right. DWI defense lawyers and prosecutors tend to argue back in forth about whether the officer administered the tests properly. And any good DWI lawyer better know the NHTSA manual back and forth, so that when he watches the videotape of his client on the scene, he can evaluate the officer’s performance as well as his client’s.

But is it possible that we in the DWI defense bar have been missing the forest for the trees? I’ve digested the first paper thoroughly, and frankly, am truly excited about Kane’s work in these areas. As soon as I make it through the next two, I’ll post more on this subject.

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That depends on whether it’s a misdemeanor or a felony. First and Second Offense DWIs in Texas are Class B, and Class A Misdemeanors, respectively. Third Offense DWI (and above) are Felonies.

Chapter 12 of the Texas Code of Criminal Procedure covers all of the limitations periods for prosecution in Texas. 

All misdemeanors in Texas have a 2 year statute of limitations, including DWI. Felony DWIs fall under the “regular” 3 year statute of limitations.

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I was arrested for the first time ever last weekend for DWI. The police officer stated I didn't come to a complete stop at a stop sign and that's why he pulled me over. I thought I did OK on the field sobriety tests but was arrested. Scared and nervous, but I did about as well as I could have on the tests.

At the police station I blew a 0.09. Just a fraction over the limit. I personally knew I was OK to drive the two miles home, but the law is the law.

I cooperated with the officer and did what he asked.

I have two questions: First, the officer did not put on my seat belt after I was placed in the cruiser; second, I was never read my rights. Could these two issues help me in my case?

By the way, I have never been in trouble in my life - ever, and I have clean driving record. I am also 44 yrs old. Any thoughts?

I have several thoughts; let me address some of the un-asked questions first.

I recently posted about the “Rising BAC” defense, and it’s possible it could apply in your case. As you acknowledge, barely over the limit is still over the limit…but the State must prove either (a) loss of the normal use of your mental and/or physical faculties, i.e. impairment or (b) having a breath or blood alcohol concentration of .08 or higher at the time of driving.

Depending on how long it was from the time of the stop until the time of the breath test, it may be arguable that you were under .08 at the time of driving (or, as the law phrases it: “while operating a motor vehicle in a public place”).

Polite and cooperative is always a good fact as well. Most police officers will acknowledge that “some people you have arrested for DWI become quite belligerent and rude”. I like to phrase it as “some people” on cross examination, because frankly, that’s probably the best you can get out of the officer, and anyway, a jury will know that not all who are “drunk” will be impolite.

As I said in the previous post, doing reasonable well on the field sobriety tests is a prerequisite to getting a dismissal, reduction of charges, or not guilty on an “over .08 breath test DWI” case. Sounds like you may have done well on them – obviously, will have to wait to see the video of the tests to know for sure.

The video will also show whether the officer asked questions about when your first and last drink were consumed, when your last meal was, and other questions potentially necessary for the State to prove “over .08 at time of driving”.

As for your actual questions, I don’t think either of those will provide you with a defense. Not seat-belting you in properly sounds like a bad idea; perhaps it’s an indication that he might be a rookie, maybe it shows that he’s sloppy, and that sloppiness might carry over into his grading of your performance on the FSTs. But that’s (1) a bit of stretch, and (2) definitely not the kind of technicality that would make a judge grant a Motion to Suppress the Evidence, or throw your case out.

I’ll post later about DWI officers not reading Miranda warnings to those arrested for DWI (it deserves a post of its own). But suffice it to say here that most officers don’t read DWI defendant’s their rights, nor do they need to.

Statements made by a defendant in response to questioning from an officer after they have been placed under arrest for any offense, without the Miranda warnings are potentially suppressible. But, in most DWI cases, all the evidence gathered against you is taken in the “investigation phase” (most of what you told the officer was before he even administered the tests to you – never mind cuffed you and stuck you in the back of his car).

Thus, the Miranda warnings do not usually apply in DWI cases.

As for never being in trouble before? The prosecutors don’t so much give you credit for lack of a prior record, as they give you grief (and enhanced penalties, fines, jail time, etc.) for it being the second time around.

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Dennis Paxinos, the chief prosecutor for Yellowstone County, Montana, wrote a Guest Opinion column in the Billings Gazette this week entitled “Scientific Test would disprove DUI myth of ‘few drinks’.”

Outraged by the suggestion of legislators in his area that a “few drinks” might accidently put them over the legal limit of .08, he issues a challenge to any two legislators to have drinks and dinner with him with these conditions:

• We all agree to take a breath test on a Portable Breath Test Instrument (PBT) first to make sure we are all starting with a 0.00 BAC.

• The lawmakers, myself and a member of the press will order dinner and drinks and we chat as we would normally for an hour and a half.

• I would then ask everyone to estimate their BAC as well as the BAC of their dining companions.

• We would then be given a preliminary breath test from an officer on stand-by. And, to demonstrate how accurate the PBT tests are, we would then all be driven to the DUI processing center to have our breath analyzed on the Intoxilizer 5000. [sic]

He finishes his challenge by insisting that since the breath test machine will inevitably show them to be “under .08”, they will have to make a statement on the floor of the House or Senate that “having a couple of drinks with dinner is perfectly legal”. (Presumably, he means driving after a few drinks at dinner is legal.)

Ignoring for now his implication that being under .08 would automatically make someone not guilty, let’s analyze what’s wrong with his so called scientific challenge…

He assumes that the Intoxilyzer 5000 gives an accurate result. (Of course, the PBT that he offers first is so unscientific, that it doesn’t even meet the low threshold for admissibility.) If the machine is so “scientific”, why doesn’t CMI, the manufacturer, allow independent (read: non law enforcement) folks to buy the machine and test it out?

The basis of modern science is peer review; and yet CMI refuses to let their machine be independently tested? Does that sound like science to you?

One last point about his op-ed piece. Paxinos writes:

…having a couple of drinks with dinner is perfectly legal. However, consuming a lot of drinks with or without dinner coupled with driving is against the law and should not be condoned or accepted by anyone.

Thanks for highlighting the problem with DWI/DUI legislation everywhere. Something is fishy when even the prosecutor can’t enunciate a clear cut rule for “how much is too much”. 

If you’re going to write an article mocking the idea that folks don’t always know when they’ve exceeded a .079 breath alcohol content, shouldn’t you yourself be able to define it better than “more than a few drinks, but less than a lot”? Science indeed.

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My boyfriend was recently charged with DWI with a Child Passenger in Midland, TX. When he was pulled over, he performed several field sobriety tests and submitted to a breath test.

The arresting officer didn't state whether he passed or failed and stated he "refused to blow" in his final report. And, an additional breath test was not administered at the jail.

He's in the process of retaining a lawyer referred to him by (someone he knows). The lawyer isn't a DWI lawyer and I've researched him to find most of his cases are trial cases. Is this the lawyer to have?

Actually, I would look for a lawyer that does have trial experience. Prosecutors know which lawyers will and won’t try cases, and, all other things being equal, probably offer better plea bargains to lawyers who they know can try a case well. Also, I think personal referrals are always a good source for finding a lawyer.

Criminal defense is very different from civil law practice however. You will want to know how much criminal defense, and DWI work any lawyer you hire has under his belt.

Does the state have a case?

This is the basic question everyone wants to know, of course, when they first come to see me as well. Unfortunately, there’s no pat answer to the question. If he did reasonably well on the FSTs, and didn’t provide a breath or blood specimen over the limit, then there’s always room for a valid defense.

Does he, my boyfriend, need to prove he complied with the breath test?

Based on your scenario, he probably took a portable breath test at the scene. For ALR driver’s license suspension purposes, refusing a request to take an Intoxilyzer test at the police station counts as a refusal, whether or not he took a PBT on scene. (And, of course, he doesn’t have to prove he took a breath test – they have to prove he was properly offered a test after the arrest, and that then he refused.)

Should he plead not guilty or try for deferred adjudication?

Unfortunately, there’s no deferred adjudication for DWI in Texas. There are, of course, other negotiable non-DWI options however, even for State Jail Felony DWI arrests.

The lawyer has also told him he may be able to keep this off his record. Is this truthful?

If the case is dismissed, or he is acquitted at a bench or jury trial, he can seek to expunge the arrest from his record.

[From an email I received; names deleted, and my answers in bold.]

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DWI lawyers know that most times their defense will be “the State can’t prove my client was intoxicated”. This usually comes up in breath or blood test refusal cases, where the defendant does well enough (not perfectly, just well enough) on the field sobriety tests.

Sometimes, the defense is that the State can’t prove that my client drove or operated a motor vehicle. This might involve the police arriving on scene after a collision, or after the driver is pulled over on the side of the road.

But the least common DWI defense is what I call the “while defense”. Yes, the state can prove my client was legally intoxicated (at some point). And yes, they can prove he was operating a motor vehicle. But they can’t put both of them together at the same time, and therefore, he wasn’t Driving While Intoxicated.

This defense is realistically possible when the defendant provides a breath or blood specimen where the analysis shows that the alcohol concentration is over .08, but is for example, under .10.

Of course, the defendant didn’t actually provide that specimen while driving, but instead, some time after the fact. I’d estimate that in most Austin DWI cases, my client’s breath or blood sample is taken somewhere between 30 minutes to 2 hours after the arrest. 

Why so long?

Well, there’s sometimes a delay while the original stopping officer waits for an Austin Police Department DWI task force officer to arrive on the scene. That officer then conducts an interview, and administers field sobriety tests. The officer might conduct an inventory of the vehicle, and will certainly read the DIC Statutory Warning to the defendant, asking for a specimen of breath.

Then there’s the trip to the police station, where there may be an additional wait. (The recent addition of the BAT-Mobile, or Breath Alcohol Testing Mobile Unit has cut down that wait – but that’s fodder for another post.) And depending on where in Austin the client was stopped, the trip to the station or the DWI mobile unit can take quite some time as well.

The point is that having a BAC of .085, for example, 30 to 45 minutes after the driving, does not in and of itself prove that the defendant was driving while intoxicated. Depending on various factors, primarily the particular drinking pattern that night and the stomach contents, it is possible for the Defendant’s BAC to be higher at the time of the test, than it is at the time of driving. It is also effected by variations in human physiology as well.

This is most likely in scenarios where the defendant’s last drink was very near the time of driving; which given what happens at closing time, is not an unlikely scenario at all.

This isn’t just some crazy DWI defense lawyer theory here either – it’s both basic common sense, and basic science. So basic, that even the CMI manual for the Intoxilyzer 500 (used for breath tests here in Austin) admits that the defendant’s actual breath alcohol content at the time of the test may be “higher than, lower than or the same as” the BAC at time of driving.

[Last Note: in explaining this over the years, I really have come to label this the “while defense”, because it seems to make sense when I explain it in this context. I should note, however, that the more formal term for it is the “rising BAC defense”, meaning that if the defendant’s BAC was still rising at the time the vehicle was pulled over, then it’s likely that it was below the test measurement at the time of driving.]

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Texas Penal Code § 49.04 DWI carries a special penalty provision, which on its face seems to carry a higher penalty than normal for a Class B Misdemeanor:

…an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours…

Indeed, “regular” Class B misdemeanors have a punishment range of 0 to 180 days, not 72 hours to 180 days. And I often get asked by potential clients, who have done some DWI research online before coming to see me, doesn’t this mean there’s at least some mandatory jail time for a first offense DWI in Texas, even if the defendant is granted probation?

But the answer is still no. The quickest explanation here is that the statute is referring to the minimum amount of time that can be probated by a judge; but as we will see, that is virtually meaningless.

When someone is convicted of any offense in Texas, and then placed on probation, they have a jail sentence “hanging over their head” as a possible penalty in case they violate their probation. (Think of it as the carrot and the stick.)

And in a DWI probation situation, it’s true that the statute requires the judge to sentence the defendant to 72 hours, or 3 days, as a minimum term of the probated sentence.

Now, in theory, a judge could sentence someone to 2 days in jail, but suspend the sentence, and not require it to be served unless the defendant violated the terms and conditions of their probation, for a regular non-DWI Class B offense. But no sane judge would ever do that. Why?

Well, we’re back to the carrot and the stick. If a defendant were sentenced to 2 days in jail probated for any length of time, they would actually have an incentive to violate their probation. Their “penalty” for violating would entail being taken off probation, and sentenced to a maximum of 2 days.

But they would, by statute, be credited with at least one day for the night they were arrested. And, at least in Austin, they would be given 2 for 1 towards their sentence (the Travis County Jail, like most county jails in Texas, gives 2 days credit for every day actually served). In other words, they would be off probation, and given back time for the time they had already served. That’s not exactly a punishment for violating their probation.

The practical truth is this: whether it’s a shoplifting, possession of marijuana, DWI, or any other Class B misdemeanor, a judge is likely to “sentence” the defendant to something on the higher range of the punishment ladder (like 120 to 180 days) when probating a sentence. This is to ensure that the judge actually has a stick, when they grant that carrot of probation.

(One final quick lawyer caveat as I re-read my entry before posting: I am not saying that probation is mandatory in the first place. Simply that folks shouldn’t read the statute to mean that they are definitely going back to jail, if they end up convicted for DWI.)

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In my last post, “Ambien, Sleep Driving and DWI,” I commented on the FDA’s push to label various sleep medications with warnings about the potential dangers of “sleep driving”. I also mentioned that this lent some validity to the recent spate of sleep driving defense claims we have heard on DWI cases.

But wait, in Texas, intent is not an element of DWI. Section 49.11 says there is no mental state necessary for the State to convict on DWI charges. And Section 49.10 precludes the defense of entitlement to use a drug, whether prescription, over the counter or alcohol. (That means that even though a physician prescribed you the medication, if you knowingly took it and then unintentionally became intoxicated, you have no defense.)

So how is it that the use of Ambien, or any other sedative-hypnotic, could provide a defense to DWI under Texas Law?

After all, the reason there is no intent required for a DWI conviction becomes clear upon reflection… If folks charged with DWI were allowed to, they could argue they had no intent to drive while intoxicated. And in fact, there proof might lie in their very intoxication itself.

(Testimony from the person arrested for DWI: Yes, I drove to the bar. And yes, I knowingly ordered the drinks and consumed them. But after I became intoxicated, I lost the normal use of my mental faculties [the very definition of intoxication for DWI], and plum forgot my original plan to take a cab ride home.)

But the Ambien sleep driving defense does not assert a lack of intent as its basis…but a lack of voluntariness instead. Here’s the difference:

Assault can be loosely defined in Texas as bodily contact that causes the slightest amount of pain to another individual. Yes, pushing and shoving, when someone says ouch, can technically meet the definition of Assault. But the defendant need not intend the harm, only the pushing and shoving.

But say for example someone takes some medication, and has a bad reaction to it, perhaps violently flailing their arms around in some sort of an epileptic like fit. Perhaps they come into contact with someone else, who is injured by this. The reason (in my admittedly unlikely hypothetical) that they would not be guilty of assault is that they did not voluntarily cause the contact in the first place.

Well, that’s also the basis for the sleep driving defense. The new warning labels being required by the FDA on sleeping pills, show us that taking the drug can make a person involuntarily drive their vehicle. 

And while the State need not prove a person intentionally or knowingly became intoxicated, they still must show that the act of operating the motor vehicle in a public place was voluntary.

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The Food and Drug Administration announced today that it was requesting drug companies to include new warnings on some sleeping pill bottles about “complex sleep-related behaviors, which may include sleep-driving. Sleep driving is defined as driving while not fully awake after ingestion of a sedative-hypnotic product, with no memory of the event.” (FDA press release here.)

You may have noticed the recent advertising blitz trumpeting the various benefits of certain sleeping pills, all to help you induce or maintain a good night’s sleep.

You probably also remember last year’s news about Congressman Patrick Kennedy’s low speed car accident, where he claimed…

…that he was apparently disoriented at the time of the crash after taking the prescribed amounts of a sleep aid and an anti-nausea drug.

"I am deeply concerned about my reaction to the medication and my lack of knowledge of the accident that evening." he said.

As Anderson Cooper on CNN noted the next day:

Some people are probably skeptical that a popular drug like Ambien can trigger the kind of behavior attributed to Patrick Kennedy.

What behavior was that?

The report said when the officer approached Kennedy he noticed his "eyes were red and watery, speech was slightly slurred, and upon exiting his vehicle, his balance was unsure."

Those are the classic signs of DWI, found in almost every police report.

And now we find out that it’s not just anecdotal. There is so much scientific evidence now that this can and actually does happen that the FDA wants drug manufacturers to provide warnings for consumers to that effect. 

The drugs include Ambien, Halcion, Lunestra, Seconal and Sonata as well as the lesser known Butisol Sodium, Carbrital , Dalmane, Doral, Placidyl, Prosom, Restoril, and Rozerem.

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Every good DWI lawyer is familiar with the last section in Chapter 8 of the NHTSA DWI Detection and Standardized Field Sobriety Testing Manual that states:

If any one of the standardized Field Sobriety Test elements is changed, the validity is comprised. (***)

Indeed, one of the bedrocks of DWI defense is being able to grade not only the defendant’s performance on the FSTs, but being able to grade the officer’s administration of the tests. In some situations, improper instructions or grading can actually make an individual test or even the entire battery of tests inadmissible.

Unfortunately, for all NHTSA’s efforts to the contrary, there are many problems with these roadside tests – even when administered by the book.   They do not, in fact, allow police officers to accurately determine whether someone is over a .08 blood or breath alcohol content.

Furthermore, most of the better trained officers will admit under cross examination that there is no correlation between some of the tests and “impairment” – I know most of the specialized Austin DWI task force officers will testify to that, because I’ve asked them under oath. 

To the extent that “science” is involved here at all, the only real measurement is between performance on the tests, and being above or below a certain BAC.  Which means there’s an inherent argument for defense lawyers in many DWI breath test refusal cases that the client’s performance on the field sobriety tests is not sufficient proof of intoxication.

(*** Every NHTSA Manual I’ve ever seen actually has this section in ALL CAPS AND BOLD – emphasizing that even NHTSA acknowledges how important this is.)

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Practicing DWI defense in Austin, Texas, I concern myself primarily with the accuracy of the Intoxilyzer 5000, the machine Austin Police Department uses, not the Breathalyzer or Alcotest machines. But I ran across this article about pending litigation in New Jersey regarding use of the Alcotest 7110 in DWI cases, and wondered if anyone else had a similar reaction to the first paragraph:

Police departments in dozens of North Jersey communities could soon begin using a new machine to determine drunkenness among drivers, following a judge's recommendation Wednesday that the device -- although not entirely accurate -- is fairly reliable.

“Fairly Reliable” – is that the standard now? 

I’m trying to see if I can track down the 268 page report that the retired judge submitted to the New Jersey Supreme Court. If and when I find it, I’ll have more later on this subject.

But from what I can tell from the newspaper reports, there appears to be at least an acknowledgment in the report that false high readings can be caused by variables in body temperature. This is also a known problem in some Intoxilyzer breath test results as well.

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Grits for Breakfast comments on a new bill recently filed in the Texas Legislature that would increase the punishment for Intoxication Manslaughter from a second degree felony to a first degree felony, if the victim was an on duty police officer or firefighter.

In layperson terms, that means the maximum punishment would increase from 20 years in prison, to 99 years or life, again, if the victim was a police officer or firefighter.

The punishment for Intoxication Assault would increase from a third degree felony (max 10 years) to a second degree felony (20 years). Intoxication Assault means committing a DWI and causing serious bodily injury, but not death. Again, the increased penalty is for police and firefighters. From Grits’ piece:

If you think a police officer's life is more important than every other citizen and want to exact maximum vengeance, which is all this bill accomplishes, fine ... say so.

But to claim boosting sentences in these rare cases will reduce drunk driving is a politically motivated lie, plain and simple. It will do no such thing.

Some of the proof is in the bill itself. Why is it limited to on-duty police officers and firefighters? Is their life “worth less” when they take off the uniform?

One of the aggravating factors that can increase murder to a capital offense is the victim being an on duty fireman or police officer, but even that requires an element of intent. From Section 19.03 of the Texas Penal Code:

the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;

So “plain” murder becomes capital murder, when it is shown that the Defendant knew the victim was a police officer or fireman.

And that illustrates exactly what is wrong with this new piece of legislation. The Texas DWI statutes in Chapter 49 of the Penal Code specifically do away with the typical requirement in criminal cases that there be any intent. Section 49.11(a):

§ 49.11. Proof of Mental State Unnecessary.

(a) Notwithstanding Section 6.02(b), proof of a culpable mental state is not required for conviction of an offense under this chapter.

So we explicitly acknowledge that DWI and related offenses are crimes without intent...so what is the increased penalty for? The random chance that the victim is an on-duty police officer or fireman.

And how can it logically be argued that increasing the penalty for some categories of victims will reduce the rate of DWI, when there is no underlying intent to commit the crime in the first place?

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Ran across a new blog for lawyers that I’m really looking forward to reading from now on. It’s published by Charles Perez and subtitled “Preparation and Presentation of Visual Exhibits at Trial or in Pre-Litigation”.

Having used Power Point in DWI trials before, I was interested in his post on “The (All Too Common) Power Point Presentation”, as well as his observation in another post that when it comes to technology in the courtroom, often less is more.

If you are an attorney practicing DWI defense on a regular basis then this blog should be added to your RSS. I know that here in Austin, the prosecutors have definitely stepped up the quality of their presentations to juries in DWI cases over the last several years.

DWI defense lawyers need to (at least) keep up with the competition.

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Today’s Austin American-Statesman article “Warrants for blood tests in DWI cases increasing” focuses on a growing trend in Travis County Driving While Intoxicated cases.

From small Texas towns to big cities such as Austin and Fort Worth, the practice of using search warrants — traditionally reserved for entering homes and businesses or seizing private property — to obtain the blood of drunken driving suspects is sweeping the state.

In recent months, some law enforcement agencies have begun taking blood in cases in which a suspect is thought to have caused an accident and refused to take a Breathalyzer exam. Others have started doing it when drivers have previous DWI convictions.

Austin Police Department started this practice sometime in the middle of last year:

Austin police Lt. Craig Cannon said officials in the department's highway enforcement division began looking into the practice last year and started using it a couple of weeks later in certain drunken driving cases.

The handful of officers at the department who primarily handle DWI enforcement might seek search warrants for cases in which drivers are suspected of felony drunken driving, which would include driving with children in the car or instances in which a person has been convicted of DWI in the past five years and when drivers caused an accident. Supervisors must sign off on the warrants.

Suspects' blood is drawn by a nurse at the Travis County Jail and taken to the Austin police forensic center, where it is tested. Results are quickly sent back to the DWI team and included in information sent to prosecutors.

I have to agree with David Frank, a fellow Austin DWI lawyer who is quoted as saying:

It seems like an overly invasive procedure to obtain evidence. The invasion into the body is a much more significant invasion than what we usually think of in terms of searching for evidence.

Since this warrant procedure for forcing blood draws from DWI suspects who choose to exercise their right to refuse a breath test is fairly new, I think it’s fair to say that we will be seeing more and more of these cases litigated in the appellate courts in the near future.

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Section 524.021 of the Texas Transportation Code provides that a person’s license will be suspended on the 40th day after receiving the Notice of Suspension, which is, in almost all cases, the night of the DWI arrest. If a hearing is requested within 15 days of the arrest, Section 724.041 provides that the suspension is stayed until a final decision is issued by the judge in the case.

In Austin, final ALR hearings are often not held until several months after the arrest for DWI. During that time period, the defendant is free to drive 24/7 – assuming, of course, that there are no other suspensions in place at the time.

The arresting officer physically confiscates the license from the defendant, usually on scene, and it is not returned with the rest of the person’s belongings when they are released from jail. 

Instead, they get several pieces of paperwork…including a yellow sheet of paper called the DIC-25, which reads “Notice of Suspension – Temporary Driving Permit” at the top. This should be kept in a wallet or purse, and used in lieu of your regular physical license.

If for some reason you, or your lawyer, did not request the ALR hearing to contest the suspension, you will want to start gathering the necessary documents for preparing an Occupational Driver’s License well before the 40th day after the arrest.

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Along with a new look over at the California DUI Blog, Lawrence Taylor shows us ways the State has shifted the burden of proof to the defendant when proving actual BAC at time of driving became too difficult.  

Stephen Isaacs writes an excellent post on some of the inaccuracies of the HGN test.

Allen Trapp has started a series he calls the Top 50 DUI arrests of all time. 

San Diego DUI Info writes about potential immigration consequences for DWI.

John Tarantino reprints his 1998 article about the best strategies for Opening Statements on the National College of DUI Defense Blog. He describes several sample opening themes – good stuff.

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Chapter 724 of the Texas Transportation Code is entitled “Implied Consent” and this law covers the rules regarding driver’s license suspension hearings for Texas DWI breath test refusal cases.

The basic legal premise justifying a DL suspension in refusal cases is that every person that has a Texas driver’s license already agreed to submit to a breath (or blood) test by virtue of applying for the license itself.

724.011 “Consent to Taking of a Specimen” reads in part:

If a person is arrested for …[DWI]… the person is deemed to have consented… to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance.

Since, therefore, you already agreed to take a breath test if you were arrested for DWI, the law says that if you refuse, they can suspend your driver’s license. For 180 days.

It’s one of those things that sounds good, but let’s examine it further.

Google defines “logical fallacy” as: “a misconception resulting from incorrect reasoning”, and that sounds good to me. Why then do I call the concept known as “implied consent” a logical fallacy?

“…the person is deemed to have consented…” [emphasis added]

If a person actually, intentionally and knowingly consents to submitting a breath or blood specimen on demand at the time of applying for a Texas driver’s license, then it would logically follow that they have forfeited their 24/7 driving privileges if they subsequently refuse to follow through on that promise.

But that’s not what happens. No one knows that this law exists. Nor is anyone told this when they apply for a license. In fact, most Texans know that it is not a crime to refuse to take a breath test (as it is in some states).

The law merely states that everybody is “deemed” to have consented…which is just legal mumbo jumbo for saying “we presume you have consented, even though you didn’t know you did…”

It might make sense to suspend a privilege such as the right to drive, if a person refused to live up to their end of their bargain; that is, what they knowingly agreed to do when they asked for the license. 

But pretending that everyone knowingly agreed to give a sample of breath, and punishing them for breaking a promise they didn't know they made...well, that's why it's called "Implied" not "Actual Consent".

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Hello Mr. Spencer,

I had a question about an "open container" charge. My wife and I came to visit Dallas, Tx from Oklahoma. We wanted something fun to do so we went to a club. 

When we arrived, we saw two cops on bicycles. They flashed the light on us and did the regular cop thing. All they saw was a small Styrofoam cup. They asked for it and I gave it to them. 

One cop asked what it was. I did not answer because they did not let me answer. So she assumed it was liquor. 

She said it smelled like coke mixed with rum. This cup was only like 1/4 full (3/4 empty). Still unable to say anything they told me to poor it out. So I did. 

Then they wrote me a ticket for "open container-plastic cup w/mixed drink." No one said it was liquor in the cup but the accusing cop. 

All I was able to say was "Yes, the cup was mine", and, "Yes, I do still live in Oklahoma." That's it. Then they left. 

I want to know is this even a valid charge under these circumstances? Does this affect my insurance? Can I beat this?

Dave (Last Name Withheld)

[This was originally a comment left on the Open Container entry. I decided to answer it fully in this new post.]

Dave:

You’re actually asking several good questions. Let me break them down.

What evidence does an officer need to write me a ticket for an Open Container violation?

Well, whatever the officer thinks is justification for the ticket. The legal term here is “reasonable suspicion”, which is an awfully low standard. Not to be silly, but for example here in Austin, they don’t have to convene a jury, or summon a judge out on Sixth Street to merely issue you a ticket.

Most folks who have gotten traffic tickets have heard the officer say that their signature on the copy of the ticket is not an admission of guilt, just a promise to show up in court and take care of it. Basically, a ticket is just a piece of paper, stating the officer’s belief that a crime has been committed.

What evidence does the prosecutor need to convict me, if I take this case to jury trial?

This, of course, is the much higher and more familiar standard of “beyond a reasonable doubt”. In the example you describe, a full litigation of the facts would include filing a Motion to Suppress the Evidence before a trial was even called. 

While there might eventually be enough “evidence” for a Municipal Court judge to allow the case to reach the trial stage, the best lawyers will use this hearing to fully cross examine the officer about her memory, her version of events, and even litigate the issue of preservation of evidence.

Would an Open Container conviction affect my insurance?

I doubt it. But I don’t know. If this was an Open Container in vehicle charge, where the allegation was that you had it in your car, then perhaps – but I don’t really know. Probably depends on your insurance company. 

If this was merely an Open Container ticket for possessing alcohol in a prohibited place, not having anything to do with a car, then I think it’s even less likely. I can’t tell from the information in your email. Still, you don’t want the conviction either way.

Can I beat this charge?

Never any guarantees, but your basic options here are to work out some sort of deferred disposition with a prosecutor, or take it to trial. Most Class C prosecutors aren’t interested in hearing your defense, believing your version over the officer’s, and giving you an outright dismissal. (See this post.)

Deferred Dispositions in Texas are expungeable if successfully completed, and that may be your ultimate goal here.

One more problem for your situation is that living out of State will make it more difficult to “fight” the case, in terms of litigation. That usually takes several trips to Court, and that can become impractical for what is essentially, a traffic ticket level offense, punishable by a maximum of $500.

There may be information on the back of your ticket about how to enter into a deferred by mail (I’m not familiar with Dallas Class C ticket procedures). If not, you may want to contact a criminal defense lawyer there who can help you out.

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I had a DWI client who was initially stopped for making a U-Turn at an intersection in Austin where there was a posted “No Left Turn” sign. Never having seen this exact situation before, I decided to do a little research to find out whether the detention was valid.

Oddly, it turns out that the Texas Transportation Code is nearly silent in terms of laws regulating U-Turns in Texas. Finally I stumbled across something I thought might help in the Austin City Code.

Austin City Code, Title 12, Traffic Regulations, Chapter 12-1 Traffic Regulation and Administration, Section 12 – 1 – 30. That Austin City Code provision says:

§ 12-1-30  U-TURNS RESTRICTED.

The driver of a vehicle may not turn the vehicle to proceed in the opposite direction at:

(1)  an intersection or median opening on a divided street where a posted traffic sign prohibits turning in the opposite direction; or

(2)  a location where the turn is not prohibited, unless the turn can be made safely and without interfering with other traffic.

My argument therefore was that the statute specifically provided that a person may not U-Turn (1) if there’s a “No U-Turn” sign, or (2) if it can’t be done safely.

My client was fortunate that the officer testified at the ALR that there were no other traffic violations besides making a U-Turn where there was a “No Left Turn” sign, that there was not a “No U-Turn” sign, and that the maneuver wasn’t a danger to other traffic around him. 

At the pretrial hearing on the Motion to Suppress, I led the officer through the prior testimony. The judge initially took the case under advisement, asked for briefs and re-argument, and eventually ruled in my client’s favor, granting the Motion to Suppress. All evidence gathered after the detention was “thrown out” (as they say on TV), and it left the State with literally no evidence against my client.

By the way, the State’s argument - and it makes for a pretty good one on a common sense level - is that a U-Turn is necessarily two left turns.

Finally, I should probably point out that this is not only a very specific situation that doesn’t come up very often, and that it only applies in Austin – or ot