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.

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.

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

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.

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.

“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.

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.