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Driving Intoxicated, or is the Officer Wrong?

Were you wrongfully charged with driving intoxicated?

Not everyone who is arrested is actually guilty of driving intoxicated. By far, the most successful way to defend a DWI case is by attacking the opinion of the officer that the driver was driving 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 driving while intoxicated by giving field sobriety tests that he learned in DWI school. Although helpful, these tests are flawed and they do not mean necessarily that the accused is driving while intoxicated. 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 about driving while intoxicated 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.

Were you set up for failure?

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?