The DWI Standard – Eliminating the Excuses and Finding the Truth July 3, 2014

In any criminal prosecution, the prosecuting attorney must prove the elements of the offense. In a DWI those elements are:

  1. Defendant
  2. On or about a certain date
  3. In the county and state where the court sits
  4. Operated a motor vehicle
  5. On a public road way
  6. While intoxicated

In a DWI, the definition of intoxication is as follows:

“Loss of the normal use of physical or mental faculties due to the introduction of alcohol, a controlled substance, a drug, or any combination thereof, or having a blood alcohol concentration (BAC) of 0.08 or more.”

This article will focus on the loss of normal use of physical or mental faculties. In the absence of a breath or blood test the district attorney can prosecute a DWI based on this standard. In fact, with a breath or blood test under the legal limit, the DA can still prosecute based on the loss of normal use. Imagine that. Even with a BAC of 0.01, a person could, in theory, be prosecuted for DWI.

When dealing with a case based on the loss of normal use, the video is key. From the moment the police officer turns on his emergency lights, everything that happens is audio and video recorded. So a jury can see and hear everything that happens during the officer’s investigation. They can see a portion of the driving, the quality of the driver’s speech, the driver’s ability to understand and follow instructions, whether the driver or the officer are polite or rude, the driver’s ability to walk, the driver’s balance, and the driver’s performance on the standardized field sobriety tests (SFSTs). Everything that happens will be viewed, reviewed, scrutinized, analyzed, and polarized.

It is the job of a good attorney to polarize what is seen on the video. When I say polarize, I mean dividing what is seen into two types of tasks – normal tasks and abnormal tasks. It is easy for a jury to understand that to determine whether a driver has lost the normal use, it is better look closely at how the driver handles normal tasks. It is completely unfair to judge normal use by looking at abnormal tasks, i.e. the SFSTs. Let me explain.

During the course of a DWI investigation there are numerous opportunities for the driver to perform normal tasks. The officer will ask and re-ask numerous questions. Conversation is a normal activity. The jury will look at whether the driver is able to converse, whether the answers are responsive to the questions asked, whether the speech is slurred, whether the driver avoids pivotal questions (e.g. “How many drinks have you had?”). Additionally, the officer will ask the driver to stand in place, feet together, hands to the side, facing the squad car (and camera). It will be easy to see whether the driver sways from side-to-side. At another point in time, the officer will have the driver do the same while facing sideways to the camera. If there is a sway from front-to-back, it will be seen on the video. The driver will likely be asked to count backward and recite part of the alphabet. These are all normal tasks – tasks that people perform in their everyday lives.

The standardized field sobriety tests are not normal tasks. The SFSTs include the following:

1. Horizontal Gaze Nystagmus – This is the test commonly referred to as the “eye test”. The officer will have the driver stand sideways to the camera, feet together, hands to the side. (Again, the officer is hoping any front-to-back sway will be recorded.) The officer will instruct the driver to follow a stimulus (fancy word for the tip of his pen) with the driver’s eyes. In a series of motions the officer with pass the pen back and forth in front of the driver’s face. The particulars of this test are beyond the scope of this blog. But the officer is looking for an involuntary jerking of the eye which may result from consumption of alcohol.

2. Walk and Turn – The officer instructs the driver to stand on an imaginary line, heal-to-toe. While standing on this imaginary line the officer will give the instructions and demonstrate the test. In demonstrating the test, the officer will pass in front of the driver, perpendicular to the driver’s imaginary line. The driver will then take nine steps on the imaginary line, touching heal-to-toe, pivoting 180 degrees, then nine steps heal-to-toe back. The officer will dock the driver if the driver steps off the line, does not touch heal-to-toe, or uses his arms for balance, among other things.

3. One Leg Stand – The officer will instruct the driver to stand, feet together, with his arms at his side while the officer gives instructions. The officer will instruct the driver to raise one leg up approximately six inches off the ground, look at his foot, and count “1000-1”, “1000-2”, “1000-3”, and so forth until the officer tells him to stop. If the driver puts his foot down, he is supposed to raise it back up and continue counting where he left off. While the drive is performing the test, the officer will bark orders at him such as “raise your foot higher” or “look at your foot”. The officer will dock the driver if he puts his foot down, even though the officer implied it was acceptable to put his foot down as long as he raises it back up and continues counting where he left off. Moreover, the officer will count it against the driver if he uses his arms for balance.

You can see how the SFSTs are completely abnormal activities. It is not normal for a person to walk an imaginary line or walk heal-to-toe. It is not normal for a person to stand on one leg and hold the position while counting. A good defense lawyer can also show a jury that these activities are intended to result in failure. For instance, it is completely normal for a person use his arms for balance. Yet, if the driver does it during the walk and turn or one leg stand, it will be held against him. It is normal for a person to maintain a balanced stance by keeping his feet shoulder-width apart, rather than feet together.

The officer will testify over and over again that SFSTs are divided attention tasks just like driving. There are numerous problems with this claim that a good lawyer can exploit. It is not a fair comparison. It is true that driving is a divided attention task, but it is an activity that the driver has been performing for years, maybe even decades. Whereas, it is highly unlikely that the driver has ever attempted the SFSTs. It is not a normal environment. The pressure in everyday driving does not even compare to the pressure felt by the driver on the roadside, often at night, with an intimidating police officer barking orders. Imagine the level of anxiety you felt last time you were pulled over for speeding. Now imagine the anxiety you might feel knowing that you are being investigated for a crime and may very well go to jail. There are numerous other ways a good lawyer can exploit the SFSTs. (I don’t want to give away all of my tricks of the trade.)

Separating the normal from the abnormal is an easy way to teach a jury how to evaluate the evidence. It is also a good way to state your case without making excuses.

Denton County is, quite possibly, the most conservative county in the Great State of Texas; which means the citizens of Denton County are conservative; which means the juries are made up of conservative citizens. Juries don’t want to hear excuses. They want personal accountability. When an attorney makes excuses for his client, the jury sees the client shying away from personal accountability. When a defense attorney makes excuse after excuse after excuse, the easy argument for the prosecutor is that the defense attorney is trying to direct the juries attention away from the real issue – whether the driver was intoxicated. Juries understand that separating the normal from abnormal is not the same as making excuses, because we are evaluating the evidence collected by the investigating officer. And most importantly, we are providing context – our context – to what to jurors see with their own eyes.

If we can help you with your DWI case or any other criminal case, please contact us at (940) 387-3518, or visit our contact page. Don’t forget to follow us on Twitter @HBWVLaw. We are experienced. We are aggressive. We care about your case.

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