Defenses are like roses. No two are alike, but each has similar beauty. An effective criminal defense attorney must tailor his attack on the State’s case based on the Client’s specific fact pattern. However, most DWI prosecutions follow the same pattern, mainly because the cop is trained to conduct the same investigation each time. The following investigative steps are typical: the cop stops a driver for some traffic violation, identifies that he has been drinking, gives field sobriety tests and then offers a chemical test of some sort to verify the alcohol content in the driver’s body. Each step in the investigation can be successfully attacked.
THE TRAFFIC STOP
It is unconstitutional for an officer to stop a vehicle without cause. Even in those instances where the police have set up road check points, they must have a significant police reason and follow a set pattern in order to avoid running afoul of the U.S. Constitution. If the stop is without cause, all the evidence that is accumulated thereafter to prove a person was Driving While Intoxicated will be suppressed.
Typically, an officer will stop because he claims to have witnessed a traffic violation; speeding, for example. Even in the tactical situation where a DWI Task force officer is looking only for a reason to stop, having in mind the ultimate goal of investigating for the crime of Driving While Intoxicated, the stop will be upheld if the driver legitimately violated a traffic law. Intent for the stop is irrelevant as long as the officer had cause to do so.
Despite the boisterous claims made by so many defense attorneys in their websites, it is extremely rare for an attorney to convince a judge that a stop was without cause, when the only evidence presented at the suppression hearing is that the cop and the client disagree about whether a traffic violation in fact occurred. Usually, there needs to be more, and this is where hiring the right lawyer makes all the difference.
Here’s an example from a case we handled: The officer alleged that he stopped our client because he observed him driving over the center line a couple times. In this case, the officer testified that the traffic violation he observed was failure to maintain a single lane of traffic. There is in fact a requirement in the Texas Transportation Code § 545.060 that requires a driver to stay within his lane. If our client had testified that he did not run over the line, and nothing more was presented, it would have been highly unlikely that the judge would have suppressed.
Fortunately, our client didn’t need to testify to get his case dismissed. A close look at the case law and the wording in the Transportation Code shows that a driver is not expressly prohibited from driving from lane to lane. It mandates that a driver must “drive as nearly as practical entirely within a single lane, and may not move from the lane unless that movement can be made safely”. In this case, we established during cross examination that the lane movement occurred at 3a.m. and that there was very little traffic in the area. We further showed that at the time the officer observed the lane crossings, there was no oncoming traffic and no danger presented to other drivers behind our client. The judge suppressed.
Another good example is a client who was traveling from another State and was pulled over by a DPS trooper for not having a front license plate. The law in Texas states that a driver must display both a front and back license plate. However, how would that apply to a visitor with an out of state registration and his State did not issue a front license plate? The right question got our client’s case dismissed.
PROBABLE CAUSE TO ARREST
An attack on the officer’s stop can be a powerful way of defeating the State’s Driving While Intoxicated case, but it is by no means the only way of defending a DWI case. Even if the peace officer had cause to stop for a traffic violation, he may only seize a person on the side of the road for the amount of time necessary to effectuate the purpose of the stop. Unless the officer has reasonable suspicion to believe the driver he has stopped is intoxicated, he must issue his ticket and release the driver.
If the officer has no information to believe the driver had been drinking alcohol or was otherwise impaired, he cannot then continue on with his investigation. In other words, an officer cannot just ask just any driver to stay on the side of the road and submit to embarrassing field sobriety tests.
Oft times the officer will testify at trial that he smelled alcohol on the driver or observed him to stumble when he existed the vehicle. Perhaps the officer will testify that the driver had slurred speech or trouble retrieving his drivers license when requested. Maybe the officer will say the driver admitted to drinking alcohol. These are all relevant factors that will enable the officer to continue his investigation. However, what if none of this information is reported in the police officer’s written report?
The police officer must prepare an offense report after each arrest. He is trained, both at the academy and in his DWI training, to report every important fact that justifies a DWI arrest. He is further required under Texas law to submit a sworn report to the Department of Public Safety after each arrest when the driver refuses or fails a breath test. What is a Jury or Judge to make of testimony by the police officer made months after a DWI arrest if it doesn’t comport with the information presented in his offense report? Our experience has been that his testimony is largely discounted, and when it relates to the continued seizure of our clients, suppression is the likely possibility.
Keep in mind that in Texas an accused citizen has a right to present constitutional violations both to the Judge and Jury, when there is a fact issue about the stop or continued detention. There have been many instances where we have successfully contested the stop and detention, and have prevailed during a jury trial even though the evidence showed our client to be clearly intoxicated. The lesson to be learned here is that the Constitution always trumps guilt.
DRIVING WHILE NOT INTOXICATED
By far, the most successful way to defend a DWI case is by attacking the opinion of the officer that the driver was intoxicated in the first place. In Texas, intoxication is defined as the loss of one’s mental or physical faculties as a result of alcohol or some other intoxicating substance. An officer’s information in that regard is limited. His opinion on whether a person has lost normalcy is based only on what he hears and sees at the scene of the stop. He has no information about the driver’s true physical and mental abilities, and unless the driver made some admission, he doesn’t know how much he had to drink.
With the exception of the driver who is so drunk that he stumbles out of his car and falls to the ground, the officer must develop his opinion of intoxication by giving field sobriety tests that he learned in DWI school. Although helpful, these tests are flawed. The National Highway Traffic and Safety Administration (NHTSA) developed them thirty years ago to aid peace officers in identifying intoxicated individuals. Even NHTSA recognizes that these tests aren’t foolproof. Further, no matter how “scientific” one claims these tests are, they are still dependent on the perception, interpretation and bias of the officer. NHTSA makes clear in its teaching materials that unless the field tests are properly given in the standardized manner, they must be disregarded. The sad fact is many police officers are not even certified to give these standardized field tests. A good defense attorney will know how to obtain that information.
Whereas the officer makes his decision about your guilt based on limited facts, the jury doesn’t. A good lawyer can minimize an officer’s testimony by pointing out that much of the evidence that he had for deciding that his client was intoxicated is also consistent with innocent behavior.
For instance, if a citizen has crossed the line several times while driving down Westheimer Road, an officer might presume that he is weaving due to intoxication. The jury, however, might hear that the citizen had just dropped his cell phone and crossed the lane because he had been trying to dig for it between the center console and the seat. If a citizen cannot stand on one leg, the jury can find out about the two knee surgeries he underwent during the last five years. It is likely that the field sobriety tests were given on the side of the road, in poorly lit environments in difficult weather conditions. These are factors that will certainly be ignored by the prosecution. A good DWI defense lawyer can highlight them.
Even without a medical reason for failing a field test, the Jury can be made aware that the tests given the citizen are designed for failure. The officer only reports problems – even minor problems – in performing these tests. By this scoring system, one could perform the test 90% correctly and still be considered a “failure”. Nobody practices balancing on one leg or walking heel to toe. It seems to surprise many police officers we cross-exam that the vast majority of citizens, including Jurors, question whether they could do these tests in even the most ideal circumstances.
The Horizontal Gaze Nystagmus, often called the pen test, is particularly nefarious. This test involves the officer shining a pen light eighteen inches from a citizen’s head and asking him to follow the tip with his eyes. The officer then attempts to interpret any involuntary jerking of the eyes. Most law enforcement agencies don’t videotape the eyes when the officer gives a citizen this test. This means that if forced to defend yourself at trial no expert can view the test independently to determine whether the officer’s assessment is accurate. In our view, this is patently unfair; especially when the officer has absolutely no medical training.
Many people have a natural jerking in their eyes that mimics the effect caused when a central nervous system is introduced into the body. The officer, not medically trained, would not know whether he was testing such an individual. Further, any amount of intoxicant might affect an involuntary jerking of the eyes, and the officer must interpret whether the jerking is sufficiently severe to show intoxication. Is it any wonder, that the officer almost always reports a maximum score on this test?
BREATH TEST DEFENSE
If a client has taken a breath test it is absolutely vital that his or her attorney understand both the procedure used to obtain the specimen of breath and the way the machine measures that specimen. It has been our experience that, absent an effective defense presentation describing the frailties of the machine and the State’s breath-testing program, Juries have a tendency to believe the results of a breath test. Discussions with jurors after trials show that most walk into court with the impression that the State has done its necessary due diligence with regard to the machine used in State breath testing and has sufficiently trained its officers to give the test. They are shocked when presented with the truth.
However, truth will not set that accused citizen free unless DWI defense counsel is prepared and able to present that truth. In many cases, the defense will need to present an expert to introduce evidence of the machines failings. In every case the DWI lawyer must know how to carefully and effectively obtain contrary information from the expert presented by the State. The lawyer must be able to acquire and interpret repair and maintenance records. He must be conversant in technical language and be able to call out a State witness who makes questionable claims about the efficacy of the test machine. Quite simply, the lawyer must know what he is talking about, or the jury surely will penalize his client.
Obviously, each individual case will have unique defenses and every case presents difficulties that a DWI criminal defense lawyer must conquer. At Stradley, Chernoff & Alford we are not hired to plead DWI cases. We are paid to win.