Going to Trial on Drunk Driving Charges

[Confused67]

My question involves criminal law for the state of: Texas

Hello,

I am writing about my boyfriend who has his seond dui. He is going to trial by jury and I am worried about the outcome. I have copied the report the best I could so I hope it makes sense.

Clothes – Orderly Breath – Strong Attitude – Cooperative, Talkative, Carefree, Polite
Speech – Slurred Body Control (balance) hesitant-swaying-unsure (walking) -staggering-hesitant-unsure (turning) – staggering-hestiant-unsure
Subject (1)
Contact Data 0 1 2
duration 1-15 16-30
3 video camera yes no


Occurrence Friday, November 27th, 12:45 a.m... Weather conditions, cool and dry.

While on patrol in a marked patrol vehicle, I was monitoring the westbound traffic lanes on a large right shoulder. The listed vehicle drove onto the right shoulder adjacent to my patrol vehicle at a high rate of speed. I confirmed the rate of speed to be 80 mph in a 65 mph zone in lane 3 of 3. The vehicle continued on westbound in lane 3 and drifted onto the right shoulder and into lane 2, failing to maintain a single lane of travel. I initiated a traffic stop at the listed location and the vehicle stopped in a private driveway.

I approached the vehicle from the driver’s side to identify the driver AP. While talking with the AP, I identified myself and explained to the AP why he was stopped. I observed the AP spoke with a very noticeable slurred speech, had bloodshot/glassy eyes, had a strong odor of intoxicants on his breath, fumbled with is wallet while retrieving his driver’s license, and also fumbled with his paperwork looking for his insurance with think fingers.

I asked the AP where he was coming from and he stated with slurred speech that he was “visiting with friends over there”. The AP stated “I was over there having a” and stopped himself mid sentence. The AP also stated that he was working all day and took some people out.

I requested the AP to exit the vehicle and submit to SFSTS. The first test administered was the HGN. The AP had to be reminded several times to follow the stimulus (pen light), having difficulty following directions. I observed all six clues including vertical nystagmus. The second test administered was the walk and turn. The AP again had a difficult time following directions.

The AP started before being told several times, could not balance during instructions, did not touch heel to toe front and return, stepped off line front and return, used arms for balance front, turned incorrectly and took the wrong number of steps front. The third and final test administered was the one leg stand. The AP swayed, used his arms for balance and put his foot down seven times.


Due to my observations and the AP’s performance on the SFSTS, I felt the AP could no operate a motor vehicle safely and he was driving intoxicated. I placed the AP into handcuffs and secured him into my patrol vehicle. I advised the AP of his rights via SAPD form 66-E and he refused to answer any questions. I read the AP the DIC form 24 and requested a breath sample, and he refused. I provided the AP a copy of the DIC form 24 and the DIC form 25.

The listed vehicle was towed to the Pound by a contract wrecker. I transported the AP to the station he was booked for PC 49.04 DWI Second. The AP stated while being transported without being asked a question and brought up in general conversation that he had a couple of beers when he went out with friends. The AP was found to have a previous conviction for DUI on 11/14/2002.


MISCELLANEOUS INFO FROM POLICE REPORT.

He received a “Statutory Warning” on 11-27-09 at 12:57 a.m. for refusing to provide a specimen and refused to sign the warning. He then received a “Notice of Suspension Temporary Driving Permit” because he was arrested for a DWI and refused to provide a specimen and his license was confiscated.




MY FRIENDS STATEMENT OF THE FACTS TO HIS ATTORNEY.

He works in retail. He had been working from Friday November 20, 2009 through Thursday November 26, 2009 (Thanksgiving day). He had been working 11-12 hours per day except for Thanksgiving day which he worked 5am until 1:30pm. This time is very busy and stressful for everyone because the increase in customers and sales for the Thanksgiving Holiday.

He ate a sandwich at about 10am & had 4 slices of pizza for dinner at about 3pm. He was watching all day and then left his apartment at about 9;30 pm & went to a bar where he had 3 Crown and Cokes.

He left the bar about 12:45am and was on his way home when he noticed a police car on the right side of the road and he followed him for a while before pulling him over. The officer said he had been speeding and that he also went off the side of the road and that is why he pulled him over. The officer, asked him for his driver's liscence and insurance cards which he had both. He then had him get out of his vehicle and asked him to take a breath test, which was refused. He gave him an eye test which he thought he passed and then the officer had him do the walking test in which the officer felt he could not pass and arrested him for dwi. He was nervous, it was 46 degrees and the sport jersey he was wearing is very thin. The officer placed him in two hand cuffs, to make him comfortable, and placed him in the rear of his car. The officer waited for the wrecker service to get his car and then started to transport him to jail.

He asked if he could call his friend so he could make arrangements to get him out of jail and the officer responded, "If you can get your phone out of your pocket". He reached around his body and got his cell phone out of his left front pocket and placed a call to his friend and told him he had been arrested because the officer thought he was drunk. He was taken to jail and processed and was then released about 11am with a bond. His friend picked him up, took him to the Bails Bond office where he signed paperwork and then we went to get his car out of impound. He was home by 1:30pm.

He has a previous dui from 2002, this making it his second.


According to the report that I was able to copy over, does it indicate that there is audiotape and videotape of the arrest and field tests? Are these items that would be presented to the jury? Is there any reason according to this information that that this report (audio/video/written) would NOT be presented to the jury? He has pleaded not guilty and says he was tired, cold and nervous. I don’t think that is going to get him a not guilty verdict. He had cataract surgery many many years ago and is on high blood pressure meds, which I don’t know if those would effect his HGN test.

Any insight woud be greatly appreciated.

[flyingron]

Your friend needs a lawyer. By his own admission he had been drinking. Drunks tend to underestimate their alcohol consumptions and in many places, the unit of "drink" is more than the 1 1/2 of whiskey that is the normal yardstick. Depending on his weight he's pretty close to the per se limit anyhow.

The FSTs are more than one test. Just being cold OR nervous is going to give you nystagmus or the other signs of intoxication. Cataracts, even current ones, aren't going to have an effect on HGN. If he had surgery for them , he's probably better off now than if he had never had them. Drunks are also very poor at evaluating their own performance on the FSTs.

The truth is, the articulable reason for the stop looks good. There was plenty of indication he was likely to be intoxicated before the FSTs. The FSTs show intoxication. The refusal is allowable evidence in Texas in the court case. He has the penalties for the refusal anyway.

He needs a lawyer.

[Confused67]

He does have a lawyer but I fear about the "quality" of the lawyer. I know that may sound terrible. My boyfriend seems to believe that he will be found not guilty because he didn't blow and because his being tired will explain the driving and the slurring. I just have a bad feeling that this is a train wreck. So would the FSTS be shown to the jury as evidence? I can't even tell if there was video?

[flyingron]

First off, YOU can't tell anything. The only parties to this are your boyfriend his lawyer. Videos of the stop are rarely used. The prosecution doesn't need them. The officer is an expert witness. He will testify to the exact observations. I've seen FSTs successfully rebutted in court but it takes way more detail than here (in the case I was involved in there were documented physical disabilities).

Your boyfriends resignation appears to be well-founded. He was intoxicated, he failed the FSTs, the refusal can be used against him. He probably was right in refusing the breath test (in fact, he should of refused the FSTs, there's no obligation to do those at all). Even if he didn't blow .08, that's still the per se limit, and they had plenty of evidence to his impairment.

The driving off the road is only the probable cause that sets everything in motion. It matters not if he was stone sober and tired or knee walking drunk. There is definitely a difference between physical aspects of intoxication (speech, FST performance) and just being fatigued.

You're right, this is a train wreck. Your BF already had the consequences of a first DUI and chose to drink and drive again.

[Confused67]

You are right, he did. He's so stuck on this "I wasn't drunk" thing that I fear it's going to come back and bite him hard. Reading what the report says, can they jury find him innocent because he didn't blow and there is no physical proof? I know what it he told his lawyer about havnig a few drinks EARLIER but don't believe his lawyer can mention that in court, isn't it some kind of priveleged information?

Also what he says to the office in the car on his own care free talk. I guess I am seeing this whole thing as how won't he get convicted and he sees it as, I was only tired and I didn't blow, I can beat this....

I want to be supportive, but I don't want to turn a blind eye to the realism.

[Confused67]

Thanks for your input. This was part of the report that I couldn't understand. I had heard that some use video/audio in court and some done. I am trying to decipher if this report shows that there is even video. Also how long to most stops for dui tend to take?

Clothes – Orderly Breath – Strong Attitude – Cooperative, Talkative, Carefree, Polite
Speech – Slurred Body Control (balance) hesitant-swaying-unsure (walking) -staggering-hesitant-unsure (turning) – staggering-hestiant-unsure
Subject (1)

Contact Data 0 1 2
duration 1-15 16-30
3 video camera yes no

Under conttact Data in block 1 I believe that is to mean minutes 1-16 and block two is minutes 16-30.
Would the entire stop with tests and all be 15 minutes long or do they tend to be longer?

[viol8te]

As states earlier, video is rarely used oin court. There is ample evidence against him without it. More times than not, after seeeing what the prosecution has, the defendant will plead out. Refusal to blow is not a good defense at all. Tickets can be written for DUI, DUI BAC< .08, DUI dangerous drugs/alcohol. All with the intent to box the defendant in a corner. He will be found guilty on one of those DUI charges.

[Confused67]

What surprises me is that with all the evidence he didn't plead out nor did the lawyer have him plead out. I don't know if it is something he would have him do at the trial by jury. But then, why even go that far? Surely the lawyer has to see the amount of evidence against him. It just seems odd to me to be draging it out this much. Will his prior dui be something that the jury is made aware? As much as I would like to see him win, I would LOVE it more that he never did it in the first place.

He is blamming being tired and stressed and nervous, but I don't think that's going to hold up.

[itsjustme]

Confused67,

I wouldnt listen to some of the posters, they are cops and trained to think everyone they arrest is guilty..

You can beat it.

The cops and DA has to prove that your boyfriend was drunk and drinking. Failing roadside test is not proof.

and by the way are cops required to put this "I observed the AP spoke with a very noticeable slurred speech, had bloodshot/glassy eyes, had a strong odor of intoxicants on his breath, fumbled with is wallet while retrieving his driver’s license, and also fumbled with his paperwork looking for his insurance with think fingers. slurred speech Glassy eyes unstable in every DUI report. the courts need to do something about that. Cop's always use the same bull. , yea right..

But basically the burden of proof is on them. They will need the video tapes to convict him more then likely and yes you can get access to the tapes. The da will probably or have already review them before trial. IF the cops word doesnt play out to the tapes he will probable get a plea agreement.


But basically get the tapes and go to trial. show the court where he was unstable and slurring etc.. The burden of proof is on cops.

Also if he was so drunk, how did he reach in his pocket and manage to call his friend to bail him out.

And their is no such thing as passing field test

[bamdeep6]

I was once pulled over 27 times in a 6 mouth period,never once passed field sobriety test. P.S. I dont drink or do drugs, And have never had DUI. Draw your own conclusion.