Board Certified DUI attorney Glen Neeley of Utah has an all to familiar post regarding people who do not have perfect balance. Glen, who specializes in DUI defense, also has a name. You see the gentleman who was arrested for DUI (in Utah the offense is DUI, in Texas it is DWI)had NO alcohol or drugs in his system but was still arrested for DWI. You ask how? Because the arresting officer asked Mr. Callis to do some balance tests and because Mr. Callis could not balance that meant to the officer that Mr. Callis was intoxicated.

Callis was pulled over because he was weaving. The police report is very descriptive of a horrible driving pattern. Oddly enough, the video does not show such a driving pattern. I admit, the driving pattern showed some drifting side to side just like a person does when they are tired. Callis told Trooper Steed that he was tired. Trooper Steed makes a descriptive list of the following clues:
slow reaction time, seemed tired
slow and slurred speech
swayed while standing
constricted pupils, droopy eyes, very slow movements.
No clues on the Horizontal Gaze Nystagmus
On the Walk and Turn Test: couldn’t keep balance, raised arms, missed heel to toe, stopped, improper turn, off line = 6/8 clues.
One Leg Stand Test: Swayed, raised arms, and foot down = 3/4 clues.
At this point, Callis was arrested. The interesting part about the field sobriety tests is that the Trooper violates all of the UHP policy and takes Callis off the video so no one can see what she did or what Callis did. It appears that she has done this on multiple cases.

Later, Mr. Callis gave a blood sample and when the results were released there were no drugs, no alcohol. And the worst part, no apology from the police and business as usual with regards to using a false, fraud test to decide whether a person who can’t balance is intoxicated.

Several weeks ago I blogged about my experience with a jury pool that had several potential jurors who believed it was better to send an innocent man to prison that to set a guilty person free. Shortly after that trial I had another jury panel for another dwi trial that I was trying. In that case I asked the same question: if you only had one option either convict an innocent person or set a guilty person free what would you do? In that case all 20 prospective jurors said they would set the guilty free. I then asked them what they thought reasonable doubt was in their mind and one male prospective juror (who actually made the jury and was the foreman) told me that reasonable doubt meant at the end of the state’s case if he had a question in his mind then it was reasonable doubt.

In Texas we no longer had a legal definition for “reasonable doubt” based on case law but we can ask what a potential juror thinks reasonable doubt is in their mind.

We tried the case for three days. The facts were that my client had a .19 breath test (.08 is the legal limit) and he failed all of his field sobriety tests. Our position was never that he was NOT intoxicated. Rather he was simply not driving at the time the officer stopped the vehicle. The jury watched the video several times during their deliberation and finally said they had a question in their mind as to whom was driving. They found my client not guilty of dwi because they had that question. Here is a clip of the driving, I think anybody who watches it will say they have a question as to who was driving.

Several months ago we tried a dwi case to a jury. In and of itself that is nothing unusual for this firm, we are dwi trial attorneys and that is what we do. I often tell potential clients I think we try more dwi trials in Lubbock Texas that any other lawyer I know. We try all types of DWI cases; breath tests and blood tests and refusal cases. But what made this case “interesting” is what happened during the trial.

In this particular case, as with most of our cases, we were contesting and questioning the arresting officer on one of the “field sobriety tests” known and the HGN or Horizontal Gaze Nystagmus test. I believe this “test” is basically worthless. Anyway I was cross examining the officer on his knowledge of various types of nystagmus and after I finished the state attempted to introduce a document that tried to say the test is valid as defined by several Optometrists.

The basic problem for the state was that they did not call a doctor to verify this but simply attempted to introduce this document. This violated my client’s right to confront his accuser and his right to cross examine his accuser. We argued this was a constitutional violation of our client but the trial court allowed the evidence before the jury. Obviously we appealed and just this week the appellate court reversed my client’s conviction agreeing that the evidence was inadmissible.

The best part of the opinion is the language the appellate court harmless error–

“To this we add that while it is laudable for the State to concede error, it seems somewhat incongruous to invite like conduct in the future by simply holding that its actions were harmless. Indeed, experience teaches that in the heat of battle litigants often push the envelope of propriety until they are told to stop. As the old cliche goes, “give ‘em an inch and they’ll take a mile.” So, care should be taken to dissuade litigants from attempting to take the mile when given the inch inherent in the harmless error rule.”Here is a link to the decision

In a recent dwi trial I asked a potential jury panel some of my normal questions in my attempt to find a fair and reasonable jury. Jury selection, or de-selection, is usually the first thing that happens as we start a trial. In a first offense, or second offense dwi trial, the jury is six (6) people. When the “trial” starts the judge usually talks to the potential jurors first for a few minutes to give them the background and some basic ideas of how the trial will work. Next the state’s attorney goes and asks questions about various things.
My experience is that most prosecutors simply use the voir dire process as a chance to try and lay out as much of the case as possible to potential jurors. Typically these prosecutors try to do things such as reduce the burden of proof, talk about “use your common sense” and tell prospective jurors that the prosecutors are not saying the citizen accused is a bad person (of course the reason for this is that if the citizen is humanized the prosecutors fear the jury might actually find somebody not guilty.
So in this trial I asked the potential jurors about a hypothetical. What would you do if you only had one option, either convict an innocent person or set a guilty person free? Out of 20 people, 7 or 8 said they would actually convict an innocent person!! I was actually somewhat shocked with the amount of people who said they would send an INNOCENT person to prison. One person said he would do that AND that he hoped he would be the person who was sent to prison to protect society. Pretty scary if you ask me, I mean think about it we want a jury to decide if the government can prove guilt BEYOND A REASONABLE DOUBT but some people really would not care about that in fact they really don’t care if a person is innocent at all. Needless to say those folks DID NOT make my jury, I can only hope that when it is their day of need they have better folks to stand up for them.

A few days ago a local television station interviewed me about a new program that the Lubbock Police Department and the Lubbock District Attorney’s office are testing. Basically the idea is that on certain weekends if a person is arrested for a dwi and refuses to give a breath test then the police and the DA’s office will attempt to get a judge to sign a warrant to have that person’s blood drawn for testing. Here is the story.

A few days later an attorney friend of mine was also interviewed. His position is that the reason for these blood warrants is that the prosecutors have little faith in the so called field sobriety tests or stupid human tricks as I call them.

The theme continues… Just last week and yesterday I wrote on the very scary idea that the ends justify the means.  This theme is very common in Lubbock DWI cases (as it is in Texas and across the country).  Now we see first hand this problem with the ends justifying the means.  I have said for a long time this philosophy is simply a slippery slope.  In other words, once an officer or department adopts the idea of the ends justifies the means, any ends can and do justify any means. 

This semester has seen a war on Texas Tech college students by the Lubbock Police Department.  The LPD is attempting to curb underage drinking.  As long as it is illegal to drink when you are under 21 then stopping or reducing the violations is a GOOD IDEA.  The problem is what the police have done to try to stop the illegal activity.  The have targeted the masses.  The are writing hundreds of tickets for minor in possession even when the individual does not possess the alcohol.  I have had students tell me that when LPD arrives at a party they simply have those over 21 line up on one side of the room and those under 21 are moved to the other side of the room.  If you are over 21, you get a “noise violation”  and if under 21 you get a MIP.  Problem is that is not the law, to get a minor in possession you have to POSSESS the alcohol.  Simply being around it is not against the law, as Judge Doty points out in a interview with the Lubbock AJ. 

“In the meantime, Doty said underage students shouldn’t have to be afraid of being at a party where there is alcohol if they are not drinking.

“Mere presence where alcohol is, and you are underage, does not constitute possession.”

But sometimes it doesn’t work out that way, Doty said.”

Reading between the lines it is pretty clear what Judge Doty is saying, he knows that the police are using the ends justifies the means philosophy to arrest and ticket everybody.  Another scary thought is the police response to these questions.  I’ll write more on that later this week.

Jamie Spencer, an attorney from Austin, leads us to an interesting blog that initially seems out of place in a dwi context. The blog is actually from a public defender writing about the Larry Craig case. I’m sure you remember the Craig case, he is the U.S. Senator that was arrested earlier this year for allegedly initiating sex in a bathroom with an undercover cop. As I read Jamie’s article, I realized Jamie is exactly right about these assumptions being made by police everywhere. The basic concept is that as a police officer I have arrested many people in the past who have had certain clues, because you had these “clues” you are also guilty.

“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.” Here is Jamie’s complete posting.

Lawrence Taylor, a dui trial attorney in California writes about a Wyoming state trooper a who was recently fired for making false reports to Wyoming’s dial a drunk reporting center. It appears that the cops had some type of tip that a vehicle on the roadway was carrying a large amount of cash. Mind you if the police had reliable sources they could have simply gone to the courts and tried to get a warrant to stop and search the vehicle. But they did not. Instead it appears that the officer simply made up a story, lied, about the vehicle being a drunk driver. In Wyoming and other states, including Texas, the governments have set up 1-800 numbers so any person can simply call and report somebody. In theory it might be good but the problem is these are annanomous calls so there is no way to check the credibility of the caller. I already see these lies from police officers in Lubbock dealing with drugs. The mentality is find or make up any reason to stop somebody and when you do then search to see if they have drugs. Finally I wonder why no charges have been filed against this officer. In Texas it is against the law to make a false report, isn’t this exactly what the officer did? Oh well, again the ends justify the means right.

Coming soon to a city near you. In Arizona if you are stopped for driving while intoxicated your face could be posted on a billboard showing your mug shot when you were arrested. The article does not clearly define if they put information up after a conviction or if after arrest but you get the point. Driving while intoxicated is the new scarlet S offense in America. Often times I see people who have been arrested for driving while intoxicated in Lubbock, Texas or other areas of West-Texas who are certainly not intoxicated. Yet that will not stop the gastpo and MADD Mothers from trying to shame a person. In fact in the last session certain elected officials tried to pass a bill in Texas that if a person is convicted of a DWI in Lubbock or anyplace else in Texas they will have to get a special license plate that would be marked with a “distinctive symbol” that would identify that driver to all as a person who has been convicted of a dwi. No other convictions carry this requirement for a license plate, not even a sex offender.

Fellow Texas DWI trial attorney Jamie Spencer recently wrote an excellent blog on     the overconfident police officer testifying at trial.  Jamie starts the post with a cite to a very interesting 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.”

Jamie argues and I fully agree that often times an officer will try to testify that any person who is not intoxicated can do the field sobriety tests perfectly. As Jamie writes:

“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.”

Either answer will work for me, if the officer testifies there are other reasons that a person can make errors it shows that these “tests” are not 100% valid. If on the other hand he testifies that any mistake is because of intoxication you will be amazed at how many mistakes the officer’s report contains, not to mention his trial testimony. For those of you interested here is Jamie’s full blog.