May 2007

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.)

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.)

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.

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.

Article 17.441 of the Texas Code of Criminal Procedure requires a magistrate to order a defendant being released on DWI 2nd 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.)