Late one night, an Austin Police Officer pulled my client over claiming he ran a red light. My client produced an expired driver’s license (his current license was still in his wallet) and he didn’t have his insurance card, which by the way was current and valid. He gave his passenger’s name instead of his own. He gave part of his home address and needed to be prompted to provide the rest. The officer wrote that my client did not know why he had been pulled over even though he was told less than 5 minutes ago the reason for the stop and previously argued that the light was yellow. The officer said he smelled a strong odor of alcohol and noticed that my client’s eyes were glassy and dilated. My client admitted to having two 12 ounce bottles of beer earlier in the evening.
When asked, my client said he didn’t know the time. My client refused the field sobriety tests, the portable breath test, refused to provide a breath specimen with an intoxilyzer, and offered a series of explanations for why he could not do the tests. He continued to insist that the light was yellow.
The officer then arrested my client for DWI. We took the case to trial.
As with all total refusal cases, jurors need to learn at the first possible moment that defendants have a right to refuse sobriety tests. The panel needs to be encouraged to remain vigilant and watch for the prosecutors attempts to burden shift. These attempts run counter to most people’s understanding of the 5th amendment privilege. Some might ask how this squares with the right to be free from being compelled to provide self-incriminating evidence. The panel needs to know up front that defendants do not have a responsibility to take sobriety tests — that defendants do not need to show the police that they’re okay to drive. The state will suggest that the Texas Implied Consent Statute makes breath tests mandatory. Most jurors become very uncomfortable when they learn what the law really says which is that drivers can refuse the tests, there are consequences to refusal, but the tests are voluntary. Once armed with that truth, the state’s attempts at burden shifting frequently backfire.
Contrary to the officer’s rendition of the facts in this case, the video showed that my client did not dangerously barrel through a red light. By pausing the video, we showed that client entered the intersection while the light was changing from green to yellow to red. Defendant drove within the speed limit, used his turn signal, and brought his vehicle to a stop in a safe and reasonable manner. Characterizing his driving as dangerous compromised the officer’s credibility. Defendant’s driving was safe and the basis for the stop was at best questionable. The client had no trouble stepping out of his vehicle, in fact throughout the video he looked solid with no noticeable sway. The officer had less than two years with APD and did not call a “55 Unit” out to conduct the investigation. Despite the DWI Task Force’s superior training, the officer maintained that he was just as qualified to explain and demonstrate the tests.
Client was quite a bit more than 50 pounds over weight and had back surgery which caused him pain when he attempted the test positions. His back prevented him from standing with his feet together or in the heel-toe position. The officer repeatedly minimized those concerns and insisted that my client was able do the tests. My client did perform his own modified Walk and Turn taking exactly 9 steps out along a straight line, walking normally with his hands at his sides, counting out loud without skipping or repeating any numbers, turning, and taking exactly 9 steps back. Despite the officer’s characterization that this was a refusal, there was no apparent loss of mental or physical faculties. I asked the officer why he did not include evidence of my client’s sobriety in his report to which the officer had no response. This left the jury with the impression that the sobriety tests were nothing more than traps designed to make a test subject fail.
Finally, we wanted the jury to know that the officer could have obtained a blood search warrant. The officer said that under APD policy he was not authorized to seek a warrant unless there was an accident involving death or serious bodily injury or the Chief of Police designated it a “No Refusal Weekend.” The judge agreed with our position that the law allows for blood warrants and instructed the jury under Article 18.02(10) Texas Code of Criminal Procedure that a warrant could issue to collect a blood specimen from a person who is arrested for DWI and refuses to submit to a breath or blood alcohol test.
The jury took just over thirty minutes to find my client not guilty of DWI.
One important detail is worth mentioning here. The original DWI video is recorded using a program called AV Viewer and is then saved to DVD. The original contained a few very short segments of hearsay and other statements that the judge ordered to have redacted. AV Viewer software cannot be redacted directly and when redactions are made, a copy needs to be generated using a different application. At trial, the state offered the copy with redactions that had been reformatted. The copy appeared to be a compressed video stream that did not have any of the information that ordinarily accompanies the original version. Unlike the original, the copy did not contain officer identification information, patrol car location, nor patrol car speed. More importantly, since the video stream was compressed, some of the frames within the original were missing from the copy. Prior to trial, the original AV Viewer DVD clearly showed that my client’s front tires were past the stop line at the intersection while the light was still yellow indicating that my client had legally travelled through the intersection as the light was changing. At trial, however, the copy had missing frames making it appear that my client’s front tires had entered the intersection while the light had already changed to red. The missing frames from the copy might have lasted less than a second but a critical piece of exculpatory evidence nonetheless was missing from our case. I do not believe the prosecutors involved were aware of this problem nor in any way knowingly caused this issue.