December 2006

Washington State DUI Blog objects to law enforcement in his neck of the woods latest advertising campaign, “Drive Hammered, Get Nailed”. I think his criticisms have significant merit:

Law enforcement agencies in the State of Washington adopted, “Drive Hammered, Get Nailed” as a Driving Under the Influence ad campaign slogan. In part this is a lie.

“Drive hammered, get nailed” sends an improper message to the citizenry of Washington State. Washington State does not enforce a Driving While Intoxicated (DWI) criminal law. Washington enforces a Driving Under the Influence (DUI) criminal law.

The former sends a message that the driver must be drunk, intoxicated or “hammered.” The latter only requires a driver to be impaired meaning they are affected by an appreciable degree due to their consumption of intoxicants.

I haven’t seen these signs popping up around Austin yet, and perhaps they’ll never arrive. But his point is valid. The slogan implies you have to be falling down drunk to be arrested, booked, processed, charged, convicted, etc. 

Nothing could be further from the truth. In fact, being .07 is certainly not an absolute defense, at least in Texas. The state just prosecutes you under the alternate theory that you have “lost the normal use of your mental and physical faculties”. (Any wonder DWI lawyers advise folks not to take a breath test?)

I’ve always thought that MADD’s “Buzzed Driving Is Drunk Driving” billboards were a good thing, because that particular catchphrase actually comes pretty close to accurately describing Texas’ DWI law in layman’s terms.  At least it might make people over-cautious, rather than deceive them, as the Washington state slogan does.

One last thought on DUI/DWI public service announcements and billboard: they need to change this commonly seen sign…

…to “DWI – Bill Gates can’t afford it”. That’ll come closer to describing the ever increasing penalties for a Texas DWI conviction.

Jon Katz posts about the junk science aspects of the standardized Field Sobriety Tests. Tests able to detect the presence of alcohol, but not the level of alcohol, such as the HGN should be recognized as such.

Lawrence Taylor finds a story about a DWI enforcement officer who himself refused to submit to a breath test when investigated for drunk driving. (That should tell you all need to know about whether or not it is a good idea to provide a breath test.)

George Creal finds himself encouraged by the Palm Beach Police Department’s long standing policy of providing rides home for folks who feel they’ve had too much to drink.

Stephen Isaacs discusses the requirements for probable cause to arrest for DUI.

Washington State DUI Blog describes the Finger to Nose field sobriety test. Despite, as he notes, this not being among NHTSA’s battery of standardized field sobriety tests, it’s not unheard of for me to see it administered to some of my Austin clients accused of DWI. (If I haven’t yet received a response based on my request for the arresting officer’s training records, this can sometimes be an initial indication to me that the officer who arrested my client doesn’t always “go by the book”.)

Guy Sharpe discusses one of the physiological differences between men and women that can lead to an overestimation of true breath alcohol content during testing.

Alveolar Breath – Breath from the deepest part of the lung.

Blood Alcohol Concentration (BAC) – the percentage of alcohol in a person’s blood.

Breath Alcohol Concentration (BrAC) – The percentage of alcohol in a person’s breath, taken from deep in the lungs.

Clue – Something that leads to the solution of a problem.

Cue – A reminder or prompting as a signal to do something. A suggestion or hint.

Divided Attention Test – A test which requires the subject to concentrate on both mental and physical tasks at the same time.

DWI/DUI – The acronym “DWI” means driving while impaired and is synonymous with the acronym “DUI”, driving under the influence or other acronyms used to denote impaired driving. These terms refer to any and all offenses involving the operation of vehicles by persons under the influence of alcohol and/or other drugs.

DWI Detection Process – The entire process of identifying and gathering evidence to determine whether or not a suspect should be arrested for a DWI violation. The DWI detection process has three phases:

  • Phase One – Vehicle in Motion
  • Phase Two – Personal Contact
  • Phase Three – Pre-arrest Screening

Evidence – Any means by which some alleged fact that has been submitted to investigation may either be established or disproved. Evidence of a DWI violation may be of various types:

  • a.  Physical (or real) evidence: something tangible, visible, or audible.
  • b.  Well established facts (judicial notice).
  • c.  Demonstrative evidence: demonstrations performed in the courtroom.
  • d.  Written testimony or documentation.
  • e.  Testimony.

Field Sobriety Test – Any one of several roadside tests that can be used to determine whether a suspect is impaired.

Horizontal Gaze Nystagmus (HGN) – An involuntary jerking of the eyes as they gaze toward the side.

Illegal Per Se – Unlawful in and of itself. Used to describe a law which makes it illegal to drive while having a statutorily prohibited Blood Alcohol Concentration.

Nystagmus – An involuntary jerking of the eyes.

One Leg Stand (OLS) – A divided attention field sobriety test.

Personal Contact – The second phase in the DWI detection process. In this phase the officer observes and interviews the driver face to face; determines whether to ask the driver to step from the vehicle; and observes the driver’s exit and walk from the vehicle.

Pre-arrest Screening – The third phase in the DWI detection process. In this phase the officer administers field sobriety tests to determine whether there is probable cause to arrest the driver for DWI, and administers or arranges for a preliminary breath test.

Preliminary Breath Test (PBT) – A pre-arrest breath test administered during investigation of a possible DWI violator to obtain an indication of the person’s blood alcohol concentration.

Psychophysical – “Mind/Body”. Used to describe field sobriety tests that measure a person’s ability to perform both mental and physical tasks.

Standardized Field Sobriety Test Battery – A battery of tests, Horizontal Gaze Nystagmus, Walk and Turn, and One-Leg Stand, administered and evaluated in a standardized manner to obtain validated indicators of impairment on NHTSA research.

Tidal Breath – Breath from the upper part of the lungs and mouth.

Vehicle in Motion – The first phase in the DWI detection process. In this phase the officer observes the vehicle in operation, determines whether to stop the vehicle, and observes the stopping sequence.

Vertical Gaze Nystagmus – An involuntary jerking of the eyes (up and down) which occurs when the eyes gaze upward at maximum elevation.

Walk and Turn (WAT) – A divided attention field sobriety test.

One of the purposes of allowing cross examination of witnesses is the idea of confronting your accuser. The theory is that the credibility and sincerity of a witness accusing you is best tested by live cross examination.

A few days ago, while sitting in court waiting for my client’s driver’s license suspension hearing to start, I watched an attorney conduct his cross of the officer who administered field sobriety tests to his client. The lawyer had a list of well prepared questions written out, which he then asked of the officer, one by one. Unfortunately, the method he used was basically to have his head down the entire time, reading the questions off of his legal pad.

When the lawyer got to the part about how the officer administered the HGN test, he had a pretty good line of questions he asked, such as:

            How long did you hold the stimulus at maximum deviation?

            How did you measure nystagmus prior to 45 degrees?

            How many total passes did you make during the HGN?

What the lawyer missed, by burying his head in his notes, was that the officer actually pulled a small “cheat sheet” out of his pocket, which gave him all the “correct” answers to these questions. These apparently weren’t notes from this particular arrest (trust me, no officer would make those sorts of detailed notes on every arrest), but just genereal guideline answers.

Not surprisingly, the officer got all of the questions right. But he was just reading his own pre-prepared notes, probably jotted down right of the NHTSA field sobriety test manual itself.

If the attorney had noticed this, he could easily have asked the officer to testify from his own memory of the event, or at least noted for the record that the officer was reading his answers from a sheet. Because he wasn’t paying attention to the witness, he missed this entirely.

One of the reasons I ask for driver’s license hearings in every DWI case is that it gives me the opportunity to cross examine the stopping and arresting officers. Several times, in cases that otherwise seemed somewhat hopeless, I have found out things about a DWI case that are extremely helpful. One of these things can be as simple as… the officer makes a really poor witness.

Complete and thorough preparation for cross examination is essential, but don’t forget to watch the witness testify. Evaluate his demeanor, and always ask yourself this: “Would this police officer make a good witness in front of a jury?”

The Texas statute covering deferred adjudication probation allows a defendant to plead no contest (or even guilty) to certain charges and be placed on a type of probation that, if successfully completed, leaves the defendant without a conviction. Most offenses under Texas law can then be sealed, through the fairly new Motion for Non-Disclosure process.

Unfortunately, this type of probation is completely unavailable for DWI in Texas, even a first time DWI, no collision, no injury, “just a misdemeanor”, and yes, even if the accused “never had a speeding ticket before”.

But wait, there’s more. In Texas, you can receive deferred adjudication probation for offenses as serious as murder – but not first offense Class B misdemeanor DWI. “For murder?”, I hear you ask…

Well, yes, you can. It’s not likely, but I can pose a hypothetical where a person might receive probation for murder…Suppose a 92 year old great grandfather “pulled the plug” so to speak on his 90 year old wife, and all the evidence showed that he did it because he loved her dearly, and couldn’t bear to see her suffer the indignities that old age had heaped upon her.

Now technically, he intentionally took a human life, which is the basic definition of murder, so he could be prosecuted for that. But a felony prosecutor might (I repeat might) consider a plea bargain for deferred probation, figuring that the defendant was not a danger to society, no benefit would come from incarceration, etc. etc.

And while that might be a stretch, my point here is that deferred adjudication probation is available as a potential option in a murder case. But not for plain-jane first offense DWI.

Why is that? Well, the forces behind the ever increasing penalties for “just” a DWI are very powerful, and legislators don’t like to offend certain lobbying groups. There has been no deferred adjudication in Texas for DWI since 1984, and I certainly don’t see things changing on that front any time soon.

Nystagmus is an actual medical phenomenon that describes an involuntary eye movement, or ‘ a jerking of the eyes’, as police officers often call it. Nystagmus can be difficult to detect, and has multiple causes, other than alcohol consumption.

Unfortunately, diagnosing both the complex medical condition itself, as well as divining its cause, has been boiled down to a few hours of a two and a half day Field Sobriety Test certification class, and taught to police officers across Texas and the United States as the ‘gold standard’ for DWI detection.

I can’t count the number of times I have heard the phrase “the eyes don’t lie” (from prosecutors, police witnesses, and others in law enforcement). Well, the truth is that when it comes to DWI detection, they do.

This blog will attempt to dissect truth from fiction, and to study what nystagmus is, what it isn’t, what causes it, and why police officers so often believe that what they saw on the scene of an arrest during a DWI investigation really isn’t science at all. Stay tuned…

Folks arrested for first time DWI offenses in Austin often come to my office surprised that their physical driver’s license was taken from them before their release from jail.

Many believe that their license is currently suspended, before they have even gone to court. The truth is that the license suspension is not concurrent with the confiscation that happens the night of the arrest.

In Texas, a person arrested for DWI, whose license was taken before they were released, has the right to contest the drivers license suspension, as long as they (or more likely, their lawyer) makes the proper request to the Texas Department of Public Safety within fifteen (15) days.

This blog will cover issues relating to the Texas Administrative Driver’s License Revocation procedure (the ALR hearing), as well as the process by which a DWI defendant may obtain an occupational license to allow them to keep driving to work, school, church, groceries, and all the important places (not necessarily to all the fun places we like to go sometimes).

More than half of police officers in Texas are certified to administer field sobriety tests to subjects stopped and being investigated for DWI.  The percentage is even higher in Austin.

The Austin Police Department created a specialized DWI Enforcement Unit (defense lawyers around here tend to refer to it as the ‘DWI Task Force’) in August of 1998. Since that time, arrests for DWI in and around Austin have more than doubled.

This blog will focus on DWI issues from the criminal defense lawyer’s perspective, and a great number of posts will be devoted to talking about the field sobriety tests, errors made in administration of the tests, and how to defend yourself against DWI charges brought primarily because of an officer’s opinion that you did not perform well enough on these tests.