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.

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.

While doing a little reading I ran across an interesting story about a deputy in Nevada who stopped a vehicle for an investigation of a driving while intoxicated concern.  The interesting thing is that the driver was the deputy’s wife.  Makes you wonder if it could happen in Lubbock. 

“An Elko County Sheriff’s deputy was arrested — after being pulled over by her husband — Saturday on charges of driving under the influence of alcohol.

Charlotte Moore, 36 of Spring Creek was arrested at Sixth and Douglas streets at 11:41 p.m. She was released at 1:47 a.m. Sunday by order of the undersheriff.

Moore, a jail deputy, is an 11-year veteran of the sheriff’s office, Undersheriff Rocky Gonzalez said. She was placed on paid administrative leave Saturday night.”

 For those who want to read the full article, here you go.

     Is that the ultimate question?  Should the legislature in Texas make it illegal for an adult ( at the age of 21) to have a beer or glass of wine at dinner and then drive home?  That is not the law now, in fact a person to be arrested for driving while intoxicated in Lubbock or any part of Texas, assuming they are 21, can legally consume alcohol and then drive so long as they are not intoxicated.  However, I’m not sure that is the actual standard that the police are using the legal standard.  I have numerous dwi videos where the officer actually says to the accused you have been drinking and driving so words similar to that. 

     Recently I ran across a good article dealing with police really trying to arrest people for having some alcohol in their system but not being intoxicated.  In fact, the founder of MADD, who is no longer associated with the organization, talks about certain problems like this and indicates that MADD has lost its focus. 

 Founder’s Remorse
Although alcohol nannies generally support zero tolerance, one dissenting voice doesn’t. “I thought the emphasis on .08 laws was not where the emphasis should have been placed,” Candace Lightner told the Los Angeles Times in 2002. “The majority of crashes occur with high blood-alcohol levels, the .15, .18 and .25 drinkers. Lowering the blood-alcohol concentration was not a solution to the alcohol problem.”

Lightner’s views can’t be easily dismissed by anti-alcohol activists. In 1980 her 12-year-old daughter, Cari, was killed by a hit-and-run driver on a suburban street in Southern California. When the perpetrator was apprehended, he was drunk. It turned out he had been convicted of driving while intoxicated four previous times-once just days before he killed Lightner’s daughter. Even after his fifth, fatal offense, he received just a two-year sentence and avoided prison by serving time in a work camp and a halfway house.

Here is the full article if you are interested 

This week the United States Supreme Court held that a passenger in a vehicle has standing to challenge a stop of the vehicle made by the police. It has always been the law that when a driver is stopped by the police that the driver can challenge the legality of the stop. In Texas the passenger has been able to challenge the reason for the stop under specific Texas statutes. I’ll write more on these statutes next week. However, there has been some confusion as to whether under the federal constitution a passenger can challenge the reason for the stop. In legal terms we call this standing. This just means that if the stop is bad or illegal only those who have standing can challenge the stop. It is pretty obvious that the driver has a legal right to fight the reason for an officer’s stop but now it is also clear that a passenger can also challange the reason. This is important because if the reasons for the officer’s stop are illegal or invalid then any evidence found as a result of the stop is also illegal. We call this the “fruit of the poisonous tree. The Supreme Court case is Brendlin v. California, __U.S.__ (No. 06-8120, 06/18/07) and was decided in favor of the passenger in a 9-0 vote.
For those of you who don’t want to read the entire case, here is an overview of the case and the reasoning behind the case.

Cops stopped a vehicle with an expired registration and recognized and later identified the passenger as petitioner Brendlin. The car that was stopped had an expired registration but a valid permit was on display indicating that the vehicle was being operated lawfully. Because Brendlin was in violation of his parole, he was apprehended. Cops searched the vehicle, and uncovered methamphetamine, among other things. When Brendlin raised challenges to the constitutionality of the traffic stop, the State Supreme Court held that passengers in vehicles no not have the same status as drivers in traffic stops when Fourth Amendment issues are raised.

Held: The right to challenge the constitutionality of a traffic stop extends to the passengers of the vehicle in question. The Supreme Court reasoned that no reasonable passenger in a traffic stop would believe that s/he was free to “terminate the encounter” with the officer, thus rendering passengers “seized” in the same way that the driver is in a traffic stop for purposes of the Fourth Amendment. Judgment is therefore vacated and case us remanded for further proceedings.