My question involves criminal law for the state of: Texas
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
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.