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

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.