Received a big box at work today and didn’t have the faintest idea what it could be. Since it was addressed to me, I opened it up, and tada… two bottles of wine.

It was a thoughtful gift from Houston DWI lawyer Mark Bennett. I had done some local co-counseling of a DWI/POM case here in Austin for a client he was representing. Mark did all the heavy lifting; I just went along for the ride.

Of course, Mark didn’t just send me any 2 bottles. They were from an Australian vineyard and named “The Guilty” and “The Innocent”. I read the label of “The Innocent” first:

The Innocent is produced from a single vineyard. Due to its limited production only a lucky few will ever get to taste it.

Aha. Clever commentary on the sometimes overwhelming and unfair advantage the State brings to bear on those it chooses to criminally accuse? Expecting something equally clever, I read the other label.

Apparently only the “lucky few” will get to taste that one too.

As for Mark's case? Well, the only disappointment was that after several settings on the jury docket the State eventually offered his client a deal that was too good to refuse: dismiss the DWI outright, plead to a lesser offense, no conviction (12.45) for the marijuana, and backtime credit, no probation, no community service, etc.

I had hoped to learn a thing or two by sitting second chair on the voir dire, if not the whole trial. Oh well. Maybe next time. And thanks for the tipple, Mark.

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…is a bad idea.

I won’t link to it, but I just ran across an attorney’s web page that I hope was not written by him. (N.B. It was not an Austin lawyer.)

The website first acknowledges that in today’s world you need to drive: work, school, church, groceries, etc., and that one of the consequences of a DWI arrest can be loss of driver’s license, and then the attorney advertises that he will:

“effectively argue your need for a license at the ALR hearing”

In other words, hire me, and I’ll let the judge know that your license shouldn’t be suspended because you really need it.

Excuse me? Are you – that is, the lawyer, not the client – are you serious?

It’s not uncommon for clients to suggest that I should stress to the Administrative Law Judge that they really need their license, and perhaps if we demonstrate exactly how much they have to drive that they can avoid a suspension. Alas, I have to disabuse them of the notion that the ALR process is concerned at all about their essential need for a license; that’s what an occupational license is for, and those aren’t issued at the suspension hearing, or even by that type of judge.

Now it’s likely that the lawyer didn’t write the webpage content himself (see examples of comment spamming by marketers on blogs here and here). But you’d at least think he would have read it by now.

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Following my post on the criminal defense lawyer’s dream juror comes an Austin American Statesman article “Internet aids trial lawyers doing background checks on clients, jurors”. What caught my eye of note towards DWI defense was this bit:

Sometimes the drunken-party photos are sufficient. Jurors whose Facebook page reveals a certain fondness for Sixth Street's nightlife or appreciation of the local music scene tend to be sympathetic to her DUI clients, said Mary Ann Espiritu, an associate with Chris Dorbandt & Associates.

Stories about the government digging up information about criminal defendants and using their online postings against them are becoming increasingly common. Of course, most of the time a defense attorney keeps or strikes a juror because of something they posted to Facebook or on their blog no one will be the wiser. Kudos to Eric Dexheimer of the Statesman for exploring this less publicized aspect of internet research and the law.

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Here’s a good reason – if you needed one in the first place – not to shop for lawyers on big referral sites. This gem comes from ZipcodeZ.com. Bear in mind that they are supposedly trying to sell you on the value of using one of the lawyers that has paid to be listed on their site:

At first glance, it may seem like a lawyer who represents drunk drivers is the biggest slime ball on the face of the earth, but the truth is not that simple.

“Notthat simple”. Apparently it’s close. But not quite accurate. Later on we learn that…

…on the slimier side of things, DUI lawyers can and do get cases thrown out of court when the police or the prosecution fail to follow procedure. While it may seem horrible that actual drunk drivers go unpunished, it is important to keep in mind that all citizens have rights whether or not they have broken the law.

True. Plus here’s a big one you left out: some folks that get arrested for DWI aren’t actually guilty because they weren’t intoxicated.

That’s what happens when police departments institute an arrest-everyone-and-sort-it-out-later policy.

[Update: Taking a look at the lawyers listed for Austin in this particular internet directory I’m actually fairly certain that not all of them – and perhaps none of them - are paying for this listing. Still the point remains the same. That is …assuming I had one.]

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Decatur Texas defense attorney Barry Green left a comment on a post sometime back, and I meant to publish it, as soon as I got around to correcting my error. Done – although, it took a reminder from his blog for me to finally get around to doing it.

In his comment he politely points out that my knee-jerk reaction to a reader’s question (“Should he plead not guilty or try for deferred adjudication?”) was “a bit unclear” because she was talking about a Felony DWI with Child Passenger charge, not a plain old ordinary first time DWI. Turns out Barry was being kind in his comment.

Love your blog but I think something was a bit unclear here. Unless I'm wrong, CCP 42.12 Sec.5 still has the loophole to allow for deferred adjudication for the offense of DWI w/ Child. (Certainly, that option will be legislatively abolished one of these days.) But, for now, I can still get that offer on occasion up here in North Texas.

Since the question dealt specifically with State Jail Felony charge of DWI with Child Passenger, my answer was flat wrong. The specific question in the post was:

Should he plead not guilty or try for deferred adjudication?

My original answer:

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.

You can indeed get deferred adjudication for that charge, although I’m sure it was a legislative mistake. The section prohibiting deferreds for DWI charges is in the Code of Criminal Procedure, while the ‘new’ section for State Jail DWI is in the Penal Code. When they added the new offense, they forgot to go back and prohibit deferreds in the appropriate section, so it is indeed possible.

Part of my error is that when I hear that question (“Plead Not Guilty or Go For Deferred?”) in other non-DWI contexts, and I usually explain that there are other options besides (a) going to full blown jury trial and (b) ‘settling’ for deferred adjudication.

One day, I’ll write a post about why it’s good there’s no deferred adjudication for DWI. (Short version: deferred’s not always that good of an option, so it encourages trying cases.)

In the meantime, thanks for the complements Barry, you sent quite a few readers this way; over 100 in fact, and everyone else out there, please feel free to tell me when I get something wrong.

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Question: My wife and I were pulled over in August 2005 on a rural road approximately 5 miles from my house by DPS who at the time was going the other direction on a two lane road.

We had been out seeing my wife’s favorite band and it was her night out. He asked me if I know what we were pulled over for and I say no. License plate light out! So no big deal until he shines the light at my wife and says, “What’s wrong with her?”

"She's sleeping,” I say. Well he asks where we have been and I'm truthful, her night out and I'm the designated driver. He proceeds through the get out of the car deal, does the eye test, then the one leg to 30, then walk the line....then the finger count....no problem here.....

He goes and finally wakes up my wife and talks with her. Well she's hammered of course. Then he comes back and arrests me after I refuse the breathalyzer.

Then he arrests her for public intoxication. I convince him to let a friend come get her and the vehicle. He does and takes me to the pokey. Since then my lawyer has sent three letters to the court letting them know when he will be out of town. The court has never sent anything to me at my home or office.

Since it has been two years, can I stroll down to the DPS and get my license or will they snatch me up? I appreciate any input.

Reply: What county is this from? Also, you are saying it has been almost two years from the arrest? The ALR suspension would usually be over well before then. (Unless there are priors, perhaps...do you have any prior DWI arrests? or prior alcohol related license suspensions?)

Follow Up: I had one prior when I was 20 and I was 35 when I got this one. Yes two years since arrest in August. It is in [Anonymous] County. I got my license suspended for not taking the breathalizer.

I haven't done anything since. No license, [rest of sentence deleted]. But if I can go and get it without being harassed I would love to do so.

Reply: Well, the 15 year old DWI can now (unfortunately) be used to enhance your new DWI charge to a DWI 2nd. It used to be the law that after 10 years, new DWI charges would be filed as Class B 'first offense' DWIs. But that's no longer the case.

But ALR (pretrial Driver's License Suspensions arising out of the DWI arrest) only started in 1995, so you shouldn't have any enhanceable alcohol related contacts. If there were prior DWI related license suspensions within the applicable time period, DPS would have sought a 2 year suspension.

I asked because based on your facts, it sounds like DPS probably sought a 180 day license suspension, which would have started either 40 days after the arrest, if you did not request a hearing to contest the suspension. And if you, or your DWI lawyer did request the hearing within the first 15 days of the arrest, certainly the hearing would have happened and the 180 day suspension is probably up. I know that would be the case for an Austin DWI arrest, but I am unfamiliar with practice and docketing in your neck of the woods.

If you got an occupational license during the original ALR refusal 180 day driver's license suspension, and filed it within the 30 day grace period with Texas DPS, then they would have made you pay the $125 reinstatement fee at that time. That would mean your license was no longer suspended.

If you never filed an occupational, or never went to pay DPS the reinstatement fee, then that is still owed, and will be necessary to get your license back.

Sounds like you've got an attorney helping you on the DWI. You probably need to contact him for more specific information.

One last note: Looks like you found my DWI blog by searching for "Statute of limitations" and "DWI Texas". You certainly need to find out from your current DWI attorney whether or not the State has filed a complaint and information officially charging you with the DWI at your local County Clerk's office. If the full 2 years runs without them doing that, you should have a legal defense to being prosecuted for the DWI criminal charge.

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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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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.

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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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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. [CORRECTION]

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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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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Hello, Mr. Spencer, I am a very concerned Texan about a DWI charge with a deferred adjudication given back in Nov. 1998 when I was 19 years old. That has been more than eight years ago. When I got a copy of my criminal history I learned that the arrest was made but when it came to final pleading it said "unknown/unreported", but does not say "not guilty", nor "nolo contendere"?

What's up with this? I came across your website by accident and I read "there has been no deferred adjudication in Texas for DWI since 1984". Well Mr. Spencer, with all due respect, and I can assure you I am not lying to you, I do have a deferred adjudication on a DWI after 1984.

Things keeps getting better, at the same time I was concurrently charged with evading arrest (Nov.98) with deferred adjudication, one year of probation. One day when I had to report to my probation officer for my evading arrest charge, I told him about the DWI charge and asked if I was going to serve it concurrently with evading arrest. He said what DWI? He did not know I even had it!

He said he was going to look for the report but couldn't find it in his office, and off he went to the city where I was originally arrested and couldn't find it either, and finally sent me to the county clerk office to see if the DWI report was there, neither. I went back to his office and told him what was happening and he said I was lucky that the papers got lost?! Up to date I am 100% sure I did not receive probation for this charge nor A.A. classes nor reported to my probation officer up-to-date. It's been over 8 years.

What can be done from here should I expunge the record if possible or should I go with motion for non-disclosure? What is your best advice?

[email from “Name Withheld”]

There are several questions in this email; let me try to address them.

First, Deferred Adjudication for DWI, after 1984. While the law was changed to reflect that Deferred was not available to DWI offenders after September 1st, 1984, in fact, many counties kept giving it anyway. I suspect this was because they were unaware of the change in the law.

I know, from gathering prior records on DWI second and felony DWI clients in Austin, whose priors were in other Texas counties, that this happened, because I’ve seen it. That actually presents some potentially favorable legal issues for the defense regarding enhancement of future DWIs, but I will address that question some other time.

My experience is that 1998 was a little late for any county in Texas to figure that out, but then again, you never know. Basically, if you plead no contest or guilty to the DWI, and the judge said something like “in the interest of justice I’m going to defer a finding of guilt and place you on community supervison…”, then you received deferred, even though technically you weren’t supposed to be able to.

Second, there’s really no such thing as “your criminal history”. Or perhaps I should say it this way: even this long after 9/11, there is no central database for all criminal history records. There’s only a variety of different agencies that have records of your arrest, and not all of them show what the disposition was. Even Texas DPS, which is the closest thing to a central depository for criminal histories, often shows “disposition unknown” as the resolution to cases that were resolved years ago.

You would need to go to the County Clerk’s office in the County in which you were arrested, not where you were supervised for the evading, and do a search for yourself by name and date of birth. In fact, in your case, I advise you to do it immediately, because you want to ensure that you got credit for the probation that you did for both cases. If that doesn't do it, I'd contact a criminal defense lawyer in that county, and go from there. If they were in the same county, contact a local attorney.

What you don’t want is some county in Texas thinking you were supposed to be reporting to their probation officer, but never did. If their computer tells them that, they may have issued a warrant for violating probation conditions (even though you were reporting in another county).

As far as expunction vs. motion for non-disclosure, an expunction is better, but you need to find out the disposition of the case, before you’ll be able to know if you are eligible for either.

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How much does it cost to be convicted of DWI in Texas? As usual, the answer here varies but let me take a crack at it anyway…

First we’ll assume this is a first time arrest, no collision, basic DWI that a defendant pleads guilty to in Austin.

The fine for a Class B misdemeanor DWI in Texas is “up to” $2000, but this is negotiable, let’s estimate it at an average of $500.

The DPS surcharge for a DWI conviction however is not negotiable, that’s a minimum of $1000 per year for 3 years, that’s $3000. If you provided a breath or blood sample over .16, twice the legal limit, the DPS surcharge is $2000/yr for 3 years = $6000. We’ll estimate this at the $3000 level.

Increase in insurance for a DWI conviction is going to vary greatly, based on your prior driving record, age, number of claims made against you in the past, etc. A very conservative estimate here though is going to be $3000, but probably higher. (And, again, conservative estimate means a low estimate.)

The ALR suspension of your 24/7 driver’s license is for either 90 days if you provided a specimen over .08, or 180 days if you refused to take a breath test. Occupational driver’s license costs in Travis County run approximately $250 for the filing fee, SR-22 insurance coverage for the period of the suspension will be $100-$150, and the reinstatement fee to DPS, which must be paid within 30 days of the ODL being filed, $125. So that’s approximately $475.

Probation costs $62 per month, and at an average of 18 to 24 months for “just” a first time DWI offense, which is common in Austin, you’re looking at $1116 to $1488. We’ll ballpark it at $1200.

Alcohol counseling is mandatory for DWI probations in Texas (or you lose your license again – never mind being sent back to court for a probation violation to face a more serious possibility of jail), and here in Austin, you’ll pay $55 to be evaluated for alcohol problems. The minimum number of classes assigned by the Travis County Counseling and Education Services (TCCES) is two: $10 for the MADD Victim Impact Panel, and $70 for the 12 hour DWI Education program. Minimum of $135.

So far, the cost of the DWI conviction is over $8000, and we didn’t talk about money spent on bail, towing charges to get your car out of impound, attorney’s fees, or court costs.

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Blogging from the Rusty Duncan seminar, and listening to San Antonio DWI lawyer George Scharmen give an excellent presentation on the Field Sobriety Tests yesterday.

One interesting tidbit. Scharmen argued that while of course you must cross the officer about the 6 out of 6 (isn’t it always all 6 clues?) on the Horizontal Gaze Nystagamus, it’s not important to go on and on about it. In fact, it may give it more effect than the jury would otherwise.

Scharmen said – and my notes are skimpy here – he asks about how the officer is only trained by another officer, not a medical professional; impeaches the officer if necessary with the manual where he has made errors in administration, eg. Holding the stimulus for less than 4 seconds at maximum deviation; asks why the results weren’t reproduced for the jury by placing the subject in front of the vehicle to put the HGN on tape, and then…

“I mostly leave it alone”.

[Scharmen asks more than those 3 or 4 questions of course; he’s just saying he deemphasizes it by doing an effective short cross on it where he can.]

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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?”

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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…

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In Chapter 8 of NHTSA’s “DWI Detection and Standardized Field Sobriety Testing” Manual is a subsection entitled “Overview of Nystagmus”:

Nystagmus is defined as an involuntary jerking of the eyes. Alcohol and certain other drugs cause Horizontal Gaze Nystagmus.

Categories of Nystagmus

There are three general categories of nystagmus:

1. Vestibular Nystagmus is caused by movement or action to the vestibular system.

2. Nystagmus can also result directly from neural activity.

3. Nystagmus may also be caused by certain pathological disorders.

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Vestibular Nystagmus is caused by movement or action to the vestibular system.

A. Types of vestibular nystagmus:

Rotational Nystagmus occurs when the person is spun around or rotated rapidly, causing the inner fluid in the ear to be disturbed. If it were possible to observe the eyes of a rotating person, they would be seen to jerk noticeably.

Post Rotational Nystagmus is closely related to rotational nystagmus: when the person stops spinning, the fluid in the inner ear remains disturbed for a period of time, and the eyes continue to jerk.

Caloric Nystagmus occurs when fluid motion in the canals of the vestibular system is stimulated by temperature as by putting warm water in one ear and cold in the other.

Positional Alcohol Nystagmus (PAN) occurs when a foreign fluid, such as alcohol, that alters the specific gravity of the blood is in unequal concentrations in the blood and the vestibular system.

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Several years back I took the same class that police officers take to become certified to administer the Field Sobriety Tests. It’s not an impressive feat; I just did it to learn more about DWI defense.

The class was taught by Troy Walden and Lance Platt, two ex-police officers who, then and now, specialize in helping lawyers defend DWIs in Texas. It used the same manuals, and they themselves were certified Instructors, so it was pretty much identical in every aspect. (I’m tempted to say the students probably paid more attention than some officers do, but I can’t scientifically prove it.)

The three day class even included the part where we the students administer tests to some subjects before and after drinking. That’s right. They bring them in with nothing to drink. All subjects get the HGN, Walk and Turn, One Leg Stand. Then, while the students go on to some other rigorous examination of FSTs, the subjects sit at a bar and get dosed with alcohol.

In other words, someone sits there and buys them drinks. Then they come back and do the tests all over again.

I was reminded of this experience when my longtime friend and office mate, as well as fellow Austin DWI lawyer Lance Stott wrote this post about his experience as a guinea pig:

My role, difficult as it was, was to be a test subject, get drunk, and then take the tests again. It was a tough job, but somebody had to do it.

I’m a little bit clumsy by nature. I didn’t listen to the instructions all that well, and performing the tests in front a group of people gave me a case of nervers. Long story short: I bombed.

I took the wrong number of steps, started before I was instructed to, did the turn improperly, and I think I stepped off the line, as well. There are 8 clues on the walk and turn, and I think I got them all.

I was there. On the second day of class they had asked if any of us could bring in our friends to be subjects, so I asked Lance if he wanted to come, and he agreed. So I designated-ly drove him to and from the class. (Another lawyer brought a friend from one of Austin’s local “bars”; she scored terribly on the tests before and after.)

I don’t remember whether he got all eight clues, but I do remember he did terribly on the first – i.e. sober – attempt. I specifically remember him getting the number of steps wrong, even though I knew he knew it’s called the nine step walk and turn.

As an aside, I also remember that someone, not Lance, had natural nystagmus in one eye. Everyone ooohed and aaaahed, as that poor guy got HGN’d to within an inch of his life. Everyone had to see it.

Police officers, when asked about natural nystagmus, will pooh pooh it in that tone of voice that let’s you know only about ten people on earth probably have natural nystagmus, and all of them know it and will announce that before they have the HGN administered to them. Apparently one of the ten just randomly made it into our class. And, no, he had no idea he had visible nystagmus at all times in one eye. But I digress.

Back to Stott. How did he do after the trip to the bar?

The second time around, I did much better. I began when I was supposed to. I took the right number of steps. I touched heel to toe, and I even did the turn more or less the way you’re supposed to. (By the way, nobody ever does the turn right.)

What happened? Well, after my trip to the bar, I wasn’t the least bit nervous anymore. More importantly, this was my second time around. I’d had a bit of practice, and this time I knew what they were looking for.

Right again. That’s exactly how it happened. I was the witness. I don’t remember the second time around HGN results for him, but other than that, I think he got zero out of eight clues on the Walk and Turn, and either zero or one clue - a passing score - on the One Leg Stand after being dosed with alcohol.

Go figure.

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Blogging from the Rusty Duncan seminar, and listening to San Antonio DWI lawyer George Scharmen give an excellent presentation on the Field Sobriety Tests yesterday.

One interesting tidbit. Scharmen argued that while of course you must cross the officer about the 6 out of 6 (isn’t it always all 6 clues?) on the Horizontal Gaze Nystagamus, it’s not important to go on and on about it. In fact, it may give it more effect than the jury would otherwise.

Scharmen said – and my notes are skimpy here – he asks about how the officer is only trained by another officer, not a medical professional; impeaches the officer if necessary with the manual where he has made errors in administration, eg. Holding the stimulus for less than 4 seconds at maximum deviation; asks why the results weren’t reproduced for the jury by placing the subject in front of the vehicle to put the HGN on tape, and then…

“I mostly leave it alone”.

[Scharmen asks more than those 3 or 4 questions of course; he’s just saying he deemphasizes it by doing an effective short cross on it where he can.]

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Prosecutor Western Justice has an amusing – so amusing it’s possibly fake? – video up on his website from a DWI arrest. Basically, it’s the falling over type.

WJ introduces the video with this thought:

Defense attorneys always make a big deal that the walk and turn test is on an imaginary line! (gasp). Well, even though it really does not matter if it is an imaginary line or an actual line, here is another reason why some police officers use an imaginary line.

Well, yes, defense attorneys do ‘make a big deal’ about that, and let’s talk about why.

Police officers come into court and testify that attending a Field Sobriety Testing course taught by another police officer makes them an expert in DWI, and juries generally believe them.

In return, DWI lawyers ask jurors to believe the manual from the training the officer received. Seems like a fair bargain.

One common misconception that I see over and over on the part of officers, up to and including some of the local Austin DWI task force officers, is the belief that book doesn’t require that a designated actual line be used.

If asked why the defendant was asked to walk an imaginary line instead of an actual line, most officers reply – some smugly – that ‘the manual’, that is the NHTSA manual, doesn’t require it. Some offer to show the defense lawyer exactly where in the book it says they don’t have to use an actual line.

Invariably, the officer will flip the pages and find this portion of the manual:

Procedures for Walk and Turn Testing

1. Instructions Stage: Initial Positioning and Verbal Instructions

For standardization in the performance of this test, have the suspect assume the heel-to-toe stance by giving the following verbal instructions, accompanied by demonstrations:

“Place your left foot on the line” (real or imaginary). Demonstrate.

[I’m taking this from the February 2006 Edition, Student Manual, page VIII-9 from Session VIII: Concepts and Principles of the Standardized Field Sobriety Tests. It should be in Chapter 8 of most or all other manuals.]

That certainly looks at first blush as if the manual says there’s no difference between the difficulty between walking an actual line, or walking an imaginary line. Although, it literally begs the question, “Officer, how wide a line did my client imagine?”

But no. The officer who so testifies is wrong. (Sorry, WJ, you’re wrong too.)

Flip the page once more – VIII-11 in the one I’m reading now - and you come to the part entitled:

4. Test Conditions

Walk-and-Turn test [sic] requires a designated straight line, and should be conducted on a reasonable dry, hard, level, nonslippery surface.

Requires. So, how to explain the seeming discrepancy? Easy.

The first section is talking about “Verbal Instructions” and is clearly labeled so. It is the Instructions Stage. That means… it is talking about the portion of the test where the officer demonstrates the Walk and Turn to the suspect.

So, going by the book, it’s perfectly OK for the officer to show the defendant how to do the test on his own imaginary line if he wants to do it that way. Heck, we all know they don’t even have to demonstrate all 9 steps. They are allowed to do it that way.

But the NHTSA Manual makes no bones about it: if this test is going to be administered properly, then the defendant is supposed to be afforded the opportunity to do it on an actual line. It is literally: required. And yes, that’s a potentially reasonable explanation for someone stepping ‘off the line’ – it wasn’t there in the first place.

Perhaps WJ’s point was that sometimes the defendant is so obviously impaired that it wouldn’t make any difference whether there was an actual line or not. And yes, I have represented more of my fair share of those types of cases.

But as for defense lawyers insisting that their DWI clients be graded properly… I don’t see anything wrong with that.

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I usually don’t pile on when a celebrity as arrested and the best way to do that is to not blog about the arrest. And while it’s worth noting that I have no personal knowledge of the facts in this case, nor do I represent the accused, this post is at least nominally in defense of Cedric Benson. (And to further my bona fides on sticking up for Benson, see this post.)

This part of the AP story about Cedric Benson’s arrest for Boating While Intoxicated in Austin jumped out at me:

According to a sergeant from the Travis County Sheriff's office, Benson, who played at the University of Texas in Austin, was arrested by the Lower Colorado River Authority. A LCRA spokesperson said that Benson, who failed a sobriety "float test" (an abbreviated version of a field sobriety test) on the boat, argued over taking a follow-up test on land and refused to put on a life jacket.

So they’re calling it a “float test” now. Never heard that one, but lemme take an educated guess at what they’re talking about.

Prior to taking someone to shore, a law enforcement officer asks the subject – in this case Chicago Bears running back Cedric Benson – to do some tests to prove his sobriety while he is still standing on his boat. While it’s on the water. Moving around. Waves underneath the boat.

Once the subject is unable to prove to the officer’s satisfaction that he isn’t intoxicated, he is asked to come ashore and then the standardized field sobriety tests are administered.

Putting aside for the moment that the FSTs are junk science at best to start off with, the officer then testifies in court – because it’s consistent with his training – that a 15 minute waiting period after coming off the boat is sufficient for the subject to regain his land legs, and to do the tests in a manner that puts him on equal footing with someone that hasn’t been out on a lake all day.

This 15 minute time period, as far as I’ve ever been able to tell, is completely made up. There are absolutely no scientific studies to show this. I’ve always suspected that whoever came up with it basically ripped off the idea from the 15 minute observation period required by Texas DPS in a breath test case.

One last note: I’m not saying that Cedric Benson is not guilty – I don’t know. Perhaps he was tanked. More likely than not, there was at least evidence that he had consumed some alcohol. But there’s a really big difference between those two, and conducting what the news media, if not the police, are now calling a float test to determine where on that bell curve he was? If it was anything like the boating while intoxicated cases I’ve seen in my career, I wouldn’t put much stock in it.

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This question via the internet. (Feel free to email me other questions about Texas DWI laws.)

Well, let me change the way the question is phrased. It’s a standard question I hear, but from those who have already been arrested and charged with DWI. Invariably, it comes from someone who took the standardized fields sobriety tests (SFSTs), and more likely than not, is let’s say ‘nervous’ that they didn’t do so well on them.

In that instance, what the client is really asking his DWI lawyer is, “The police officer didn’t tell me I could refuse to do the tests. Can you get them thrown out / ignored / suppressed?”

No, at least not on that basis. Police are not required in Texas, or anywhere else that I’m aware of, to tell DWI suspects that they may politely refuse. In fact, it’s quite the opposite.

I’ve seen quite a few DWI videotapes from Austin arrests where the officer tries to convince the person out on the scene that they should take the tests, even after they politely refuse. Some of the time the officer pretends to not understand that my client is even exercising their right not to submit to the tests.

Other times, they’ll say “OK, but you don’t know what I’m going to ask you to do… Let me just demonstrate the test for you…”

The ‘demonstration’ of course, includes standing with your feet together, hands at your side, place your right foot in front of your left foot, stay in that position until I tell you to start… in other words: the test has begun before the officer fully demonstrates it.

However, there’s a more important aspect of this question from my perspective. It’s what I call ‘spilt milk’.

If you’ve recently been arrested for DWI, more likely than not, you’re playing the ‘split milk’ game.

• If only I had turned right instead of going straight.
• If only I had left the bar earlier (later?)
• If only I had taken a cab. Etc., etc.

There’s no point crying over spilt milk. We’ve got to play the cards we’re dealt, and that’s OK. I tell my clients to give themselves 2 or max 3 more days to beat themselves up over the arrest, and then let’s get on with building our defense.

In Austin, the DWI process takes several months, four to six months usually, sometimes longer. You’ll drive yourself crazy if you play “I should have done this differently” the whole time.

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Stephen Gustitis recently commented on a study done at Berkeley that ‘debunk[ed] conventional wisdom on trial witnesses’:

The researchers concluded that self-assured witnesses who make a mistake - even on issues of little importance - undermine their credibility by raising doubts about their competency, their ability to judge their own abilities and their motivations.

"People giving testimony, or advice, or opinions should therefore be careful to express appropriate degrees of confidence in their assertions," the researchers write in a summary of their report in the January issue of the journal Psychological Science. "Otherwise, the 13th stroke of the clock will cast the other 12 in doubt."

I take issue with the title of that article, because I doubt that is the conventional wisdom, at least of those who should know. As Stephen says, the study ‘confrimed what experienced criminal defense lawyers already knew’:

The cocky, arrogant, or over-confident witness builds a wall between themselves and the jury. Since normal, ordinary, and reasonable people know we all make mistakes, the over-confident witness projects an air of superiority which juries tend to resent. Consequently, when the witness is caught in a mistake the jury is quite happy to punish him by greatly devaluing his credibility.

The over-confident witness is often one testifying as an expert, but the problem also affects the lay witness. The experienced defense lawyer preparing these witnesses for court will recognize the problem and take appropriate steps to temper their over-confidence.

100% correct. And this leads me to one of my favorite things about DWI cases. Since DWI is an opinion crime, the arresting officer will find himself caught up in this phenomenon in almost every case.

When it comes to evaluating a defendant’s performance on the field sobriety tests, yes, NHTSA has their ‘standards’, but even the manual doesn’t attempt to suggest that everyone will do perfectly. Or even that all defendants who exhibit X number of clues on the [HGN, Walk and Turn, One Leg Stand, etc.] are intoxicated.

Consequently, when asked in cross examination whether my particular client could have exhibited the clues on videotape, but not be intoxicated, the officer has two choices:

(1) He can admit it’s possible that things other than intoxication could have caused my client’s ‘errors’ on the test.

(2) He can express with 100% confidence and certitude that the only reason for my client’s foot coming off the imaginary line is absolute proof of intoxication.

Frankly, I’m fine with either answer. In a lot of cases, I prefer answer #2. Jurors know #2 is wrong wrong wrong; and as the study suggests, it will reduce the juror’s natural tendency to ‘believe what the officer says’.

In fact, seasoned officers know this as well. In my experience, almost all of the Austin DWI Task Force officers will testify either at pretrial or at the ALR hearing that the tests are not 100% accurate, and that factors other than alcohol or intoxication can cause some missteps on the FSTs.

Of course, that’s not really such a bad answer either.

[Also see: Certainty of the Witness.]

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Kevin Smith of Wichita, Kansas writes about his ‘Matlock Moment’ in a recent DWI jury trial.

His client’s situation was familiar to DWI lawyers everywhere. The defendant looked fine when walking, talking, and interacting with the officer except… when it came to doing those Field Sobriety Tests.

To win a DWI case, the defense lawyer must often come up with a plausible explanation of why the client does poorly on the agility tests, other than intoxication or impairment. In Kevin’s case, his female client was wearing 2 inch high heel shoes.

Kevin’s description of the key moment in trial:

The "not guilty" verdict came down to a question.

Before I reveal the question it will help to picture the officer first. He's about 6'4", roughly 250 lbs. (with a sizable belly to boot), bald, and very tough looking.

So here's the question: "You probably would have done as bad on the field tests had you also been wearing two-inch high heels, wouldn't you?"

He responded, "Maybe, but I can't tell you for sure since I've never worn high heels."

Excellent example of distilling the defense case down for the jurors to ‘get it’.

And, it’s an example of that rare type of cross examination question: you don’t know the answer, but you don’t care how the officer responds. He can either - as in this case - answer truthfully, which helps your client; or he can hem and haw and sound unreasonable. I’d almost prefer to hear the officer’s explanation of why high heels wouldn’t affect his performance on the FSTs. The jury will still get the point.

Kevin doesn’t say whether he had the officer read this portion of the NHTSA DWI Manual to the jury:

The original research indicated that individuals over 65 years of age, back, leg or inner ear problems had difficulty performing this test. Individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes. [DWI Detection and Standardized Field Sobriety Testing, 2006 NHTSA Manual, VIII-11. Emphasis Mine]

Doesn’t sound like this officer offered Kevin’s client the opportunity to take off her shoes, and that can be an important point to put in front of the jury.

Of course, when you get an answer as good for the defense as Kevin got, it may not be necessary.

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Public Defender Dude on “Larry Craig and Police Officer Opinion Testimony”:

One of the areas that has held public fascination in the Larry Craig situation is the vagueness of the charges and allegations against him. Put simply - what did he actually do wrong - tapping a foot and reaching with his hand? He clearly did not break any established and obvious laws by those actions… So what he did had to be interpreted by a police officer as being illegal, because it is not illegal on its face.

This brings up an area that I've so often railed against - police officer opinion testimony (or, as I like to put it, "my opinion is that you're guilty."). I think that this opinion testimony, whether in the context of gangs (giving an opinion that any sundry crime was committed for the benefit of a street gang so as to make minor crimes strikes, or average crimes life sentences), or drugs (giving the opinion that whatever amount of drugs that someone possessed was obviously possessed for purposes of sale), or any other area.

Prosecutors love this stuff. It's like 2 closing arguments in their case. They get a police officer who gets to get up on the stand and essentially say "I've investigated thousands of cases, and in my opinion this person is guilty, because his case falls in with all these other ones in this manner."

It is highly prejudicial, and in many cases, highly meaningless.

It struck me when I read his post that PD Dude is also accurately describing so many officers’ testimony in DWI cases, as it relates to the defendant’s performance on the Field Sobriety Tests.

“In my opinion, he should have done better on these agility tests, and because he didn’t, in my opinion he’s guilty of DWI.”

DWI lawyers must point out that the officer’s opinion doesn’t factor in

• Initial nervousness for being pulled over for a traffic violation
• Increased nervousness now that you know you’re being investigated for DWI
• You might be non-athletic, or perhaps even a klutz
• Or that Field Sobriety Tests don’t measure a person’s normal abilities to do anything

As PD Dude says, you may just be able to show that the police officer’s opinion is “highly meaningless”.

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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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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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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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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.

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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?”

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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…

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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.

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In Chapter 8 of NHTSA’s “DWI Detection and Standardized Field Sobriety Testing” Manual is a subsection entitled “Overview of Nystagmus”:

Nystagmus is defined as an involuntary jerking of the eyes. Alcohol and certain other drugs cause Horizontal Gaze Nystagmus.

Categories of Nystagmus

There are three general categories of nystagmus:

1. Vestibular Nystagmus is caused by movement or action to the vestibular system.

2. Nystagmus can also result directly from neural activity.

3. Nystagmus may also be caused by certain pathological disorders.

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Vestibular Nystagmus is caused by movement or action to the vestibular system.

A. Types of vestibular nystagmus:

Rotational Nystagmus occurs when the person is spun around or rotated rapidly, causing the inner fluid in the ear to be disturbed. If it were possible to observe the eyes of a rotating person, they would be seen to jerk noticeably.

Post Rotational Nystagmus is closely related to rotational nystagmus: when the person stops spinning, the fluid in the inner ear remains disturbed for a period of time, and the eyes continue to jerk.

Caloric Nystagmus occurs when fluid motion in the canals of the vestibular system is stimulated by temperature as by putting warm water in one ear and cold in the other.

Positional Alcohol Nystagmus (PAN) occurs when a foreign fluid, such as alcohol, that alters the specific gravity of the blood is in unequal concentrations in the blood and the vestibular system.

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Nystagmus can result directly from neural activity:

Optokinetic Nystagmus occurs when the eyes fixate on an object that suddenly moves out of sight, or when the eyes watch sharply contrasting moving images.

Examples of optokinetic nystagmus include watching strobe lights, or rapidly moving traffic in close proximity. The Horizontal Gaze Nystagmus test will not be influenced by optokinetic nystagmus when administered properly.

Physiological Nystagmus is a natural nystagmus that keeps the sensory cells of the eyes from tiring. It is the most common type of nystagmus. It happens all the time, to all of us. This type of nystagmus produces extremely minor tremors or jerks of the eyes. These tremors are generally too small to be seen with the naked eye. Physiological nystagmus will have no impact on our (NHTSA) Standardized Field Sobriety Tests, because its tremors are generally invisible.

Gaze Nystagmus occurs as the eyes move from the center position. Gaze nystagmus is separated into three types:

(1) Horizontal Gaze Nystagmus occurs as the eyes move to the side. It is the observation of the eyes for Horizontal Gaze Nystagmus that provides the forst and most accurate test in the Standardized Field Sobriety Test battery. Although this type of nystagmus is most accurate for determining alcohol impairment, its presence may also indicate the use of other drugs.

(2) Vertical Gaze Nystagmus (VGN) is an involuntary jerking of the eyes (up and down) which occurs when the eyes gaze upward at maximum elevation. The presence of this type of nystagmus is associated with high doses of alcohol for that individual and certain other drugs. The drugs that cause Vertical Gaze Nystagmus are the same ones that cause horizontal Gaze Nystagmus.

Note: There is no drug that will cause Vertical Gaze Nystagmus that does not cause Horizontal Gaze Nystagmus. If Vertical Gaze Nystagmus is present and horizontal Gaze Nystagmus is not, it could be a medical condition.

(3) Resting Nystagmus is referred to as a jerking of the eyes as they look straight ahead. Its presence usually indicates a pathology or high doses of a Dissociative Anesthetic drug such as PCP. If detected, take precautions. (Officer Safety)

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