Can You Flag Down That Prosecutor For Me?

I was in District Court most of the morning and saw an interesting set of events. As they unfolded, I paid more and more attention, but I’m sure I missed some details at the beginning. Here goes:

First: A prosecutor, a cop, defense lawyer Oscar Buitron, and the defendant at the bench. Testimony was being taken in a DWI case. Something about a CAD report and whether or not the officer really had called in to dispatch to check the license and registration on a vehicle as he had previously sworn under oath.

I suspected, and later confirmed, that it was some sort of continuation of a pretrial hearing that had already occurred. The officer was insisting that he indeed had called in to check the vehicle, but he was squirming, uncomfortable. Just a little bit. He’d testified before, so he was almost holding his own.

But it was obvious from the questioning that Oscar thought he could prove the officer was being… let’s say… untruthful. And more importantly that he had the goods to prove it. Then out came the CAD report itself (of course).

I had other things going on, but my interest was piqued and I managed to catch something about “if you press this button here”, “then you press that button there”, “blah blah blah”. They were up at the bench, no microphones, I didn’t catch everything being said.

After testimony concludes, there’s some chatter about resetting it to another-another-pretrial setting so that Oscar can bring in some more witnesses (APD officers no less) who will be able to show that the arresting officer’s testimony – that he had called it in, that dispatch had called him back and said the registration wasn’t current, but that he had then manually deleted that information from the CAD report itself – was impossible. (Never mind nonsensical. “Gee, let me take some time out of my busy day to erase the confirmation that this was a good stop.”)

Second: Probably 15/20 minutes later I’m chatting with that prosecutor about something completely unrelated, and the bailiff walks up to him and says, “The officer wants to talk to you”. He motions to the jury room. The prosecutor excuses himself from our conversation and leaves.

Third: Another half hour later… the defendant is back at the bench entering a plea. To back time on a misdemeanor.

Now I don’t need to see parts one and two to know that as a general rule when a defendant walks up to the bench in Felony Court and pleads to a misdemeanor, that he’s getting a significantly above average deal in his case. Never mind that it was back time: no probation, no more jail. Oscar was obviously well prepared and had gotten a good result.

By the way, I left it out of the initial description, but the prosecutor had brought out other traffic violations for the court to hang its hat on, so this was – despite the testilying – no slam dunk win for the defense.

I talked to Oscar afterwards (who among us doesn’t love it when one of our brothers or sisters ekes out a victory) and found out some more details. It was a habitual case. The defendant had (at least) two prior pen trips and was looking at a minimum of 25 years if convicted on the indictment.

More invigorating (perplexing? commonplace?) still was that Oscar hadn’t known this would pop up during the first pretrial. The officer had already listed in his PC affidavit, and testified to traffic violations that weren’t demonstrably false, when he decided to just “add” the testimony about calling in the license to dispatch. (This is a favorite police “excuse” in my experience. Which is foolish because it’s one of the easiest to catch them on.) Nothing mentioned about it though in the PC or the offense report.

Oscar’s BS detector went off. He asked the judge to continue it, rechecked the tape which confirmed his memory that the officer appeared to discover that the vehicle was unregistered well after the stop, and ordered the CAD.

Mostly though, it’s that second step listed above that intrigues me so. The cop in the back room sweating and “needing to talk” to the prosecutor.

What exactly did that officer tell the prosecutor, when the bailiff alerted him that he needed to “confer”? I’ve never worked for the State, so I can only imagine the possibilities…

• “Hey I’m not sure how intoxicated he was after all. Can you work out a deal?”
• “Please drop this case… I don’t want to come back on it. Ever.”
• “Quick question for you… what’s the penalty for perjury again?”

DWI Checkpoints as the Roach Motel of Law Enforcement

Despite the best efforts of some legislators in Austin to whittle away at the protections of the Fourth Amendment, DWI roadblocks or sobriety checkpoints are still not legal in Texas.

But they are in Missouri, and Randy England notes an interesting tactic used there:

The police sometimes get clever in setting up such roadblocks. A sign on the highway will say “Sobriety checkpoint ahead - be prepared to stop.” The police then setup the roadblock–not on the highway–but at the next exit.

The idea is that drunk drivers will “select” themselves by taking the exit to avoid the roadblock. Like checking into a roach motel. Too late, the driver realizes, he put his head in the noose.

Of course, once the police have a car stopped and the window is rolled down, the party is over in the time it takes to smell the driver’s breath.

Well, I have to admit it’s clever. And every 2 years when the legislature meets, it's more and more likely to be coming to us in Texas.

DWI, Community Caretaking and High Crime Areas in Austin, Texas

I was waiting in Travis County Court #7 this morning to talk to the judge about a post conviction occupational driver’s license. Meanwhile, a pretrial motion to suppress had already started.

From what I could gather, the officer had seen a car pulled off on the side of the road. The defense attorney was doing a good job pointing out through cross examination that no traffic violations had been witnessed.

Apparently, the State was attempting to justify the initial detention through the ‘community caretaking’ exception. Community caretaking is shorthand for the legal concept in Texas that the police can legally detain you ‘for your own good’. Of course, since it’s only litigated in the criminal context, that means they ended up arresting you for one thing or another, so how much good it ended up doing you is questionable at best.

So the officer had pulled over ‘to investigate,’ I suppose, but I had missed that part of the testimony, when this little gem came up:

• Defense attorney: Was there anything unsafe about stopping in that neighborhood?
• Officer: Well, any area in Austin can be unsafe.
• Defense attorney: Do you consider that to be a high crime area?
• Officer: All areas in Austin can be ‘high crime’.

Exactly! There’s no place in Austin, in Texas, or really in the world that an officer can’t characterize as “could be a high crime neighborhood’.

So, when an arresting officer testifies that “part of the reason I detained him was to investigate due to it being a high crime area,’ appellate courts need to stop pretending that adds any logical or legal basis for a stop or a detention. Is this really how low we want our standards to sink?

Like most of the affronts to our constitution, no one cares about this sort of erosion of civil rights… until they are arrested for DWI…

DWI & Videotape Evidence

In Texas DWI cases, there’s almost always a video tape of your client. It will include some driving, and many times the entire substantive interaction between the arresting officer and the defendant.

And that’s going to end up being a better record of how someone did on the Field Sobriety Tests than the officer’s recollection.

True, the initial portion of the traffic stop, i.e., the reason for the initial detention may not be recorded. For example, the Austin DWI Task Force officers drive cars equipped with video cameras, but they only activate once the overheads have been turned on.

Since the officer isn’t going to activate his overheads to pull someone over until after he sees a traffic violation, unfortunately this isn’t caught on tape.

But wait, you say… no video, means no evidence right? And if they can’t prove the traffic violation, then the judge will have to grant a Motion to Suppress and throw the case out.

Not so fast.

There’s no rule requiring the State to present videotape evidence in a DWI, or in any other type of criminal case for that matter. In fact, in most jury trials, for non-DWI offense, there is no video tape evidence of any kind.

Evidence usually comes from the witness stand in the form of oral testimony from one or more witnesses, and that may be it.

How many times do you think the State has to produce a videotape of somebody actually committing a murder to convict them of it? I’m sure it’s happened, but it isn’t all that common.

I’m a big fan of videotape. At least the officer will be confined to the facts of the case, rather than feel free to add incriminating statements or other evidence that can’t be disproved.

I’m also glad to see that Texas DPS has recently gotten a new video machine in some of their vehicles. Apparently, it works like a DVR. It is constantly recording, and it keeps several minutes in the pipeline, so to speak. Then, when overheads are activated, the machine actually saves several minutes worth of video prior to the lights coming on.

Yes, this often leads to videotape evidence of my client committing that traffic violation that the DWI officer is claiming. But the judge was likely to take his word for it anyway, if there hadn’t been video.

Consequently, not having the video of the driving is almost always a losing issue for the defense. But recently, I litigated a Motion to Suppress where the officer had written in his report that my client had ‘Failed to Maintain a Single Marked Lane’.

And the video showed the Trooper’s approach of the vehicle, and my client’s tires barely crossing the line once. But we could also show, due to the DVR-style video, that there was no other traffic around, and that the movement wasn’t unsafe to others.

Based on that, I made the argument that the State had failed to prove reasonable suspicion to detain because the video evidence didn’t meet the standards of the Hernandez case. [Short version: Defendant doesn’t commit Failure to Maintain a Single Marked Lane in a case where he crossed the line once, by 18 inches, and did not cause any safety hazard to others. The case itself has been watered down significantly since it was issued in 1998, but the facts on my video were actually remarkably close to the original case.]

The judge took the case under advisement, and I don’t have a ruling yet. But without that extra bit of videotape evidence, I wouldn’t have been able to even make a credible argument.

I doubt the officer would have admitted that it was only one time, that no other cars were around, that the movement wasn’t unsafe, etc.

The ‘extra’ videotape in that case may end up saving my client from a DWI conviction

Police Admit Using Incorrect Standard for 'DWI'

Police in New York State have admitted to arresting and charging drivers with any alcohol on their breath, although the law only criminalizes impaired driving. Well, that’s my DWI defense lawyer take on the story, but you tell me:

"If you're going to drink, do it at home, designate a driver or hire a taxi. We're not saying there's anything wrong with drinking - just drinking and driving," said state police Lt. Douglas Larkin of Troop K in Westchester…

Once the driver rolls down the window, (the officer) said, it's easy to tell if he or she has been drinking.

"The first thing that hits you is the odor of alcohol -it's so obvious," he said. "I've had a few drivers who know they've been drinking and try to play it down, but the odor on their breath gives them away."

“Drinking and driving.” And having alcohol on your breath. These are the main standards it appears that police use to make an arrest for DWI.

But the law itself doesn’t say having a detectable odor of alcohol on your breath and operating a motor vehicle is illegal (unless you are under 21 – then it’s a DUI in Texas). Driving while having lost the normal use of your mental or physical faculties, due to the introduction of alcohol, a controlled substance, etc., is illegal.

On a side note, I’ll add this: I advise friends and family, and anyone else who asks, that in Austin, DWI arrests are made using this same standard.

If you are pulled over for a traffic violation in Austin, Texas, and the police officer smells the odor of an alcoholic beverage on your breath, you are very likely going to jail for DWI. I have heard testimony from Austin Police Department DWI Task Force officers that is substantively the same as what is quoted above

Visual Detection of DWI Motorcyclists: NHTSA Manual

The primary student manual “DWI Detection and Standardized Field Sobriety Testing” published in February 2006 by NHTSA spends less than half a page on its subsection “Visual Detection of DWI Motorcyclists”. It’s in Chapter 5, Phase One “Vehicle in Motion” immediately after the section on visual cue descriptions for auto motorists.

However, in March of 2005 NHTSA published a brochure on the subject entitled “The Detection of DWI Motorcyclists”.

From both sources, the list of driving cues that officers are trained to look for in Motorcycle DWI/DUI cases are listed as either excellent (above 50% chance) or good (30-50% chance):

Excellent Cues

• Drifting during turn or curve
• Trouble with dismount
• Trouble with balance at stop
• Turning problems
• Inattentive to surroundings
• Inappropriate or unusual behavior
• Weaving

Good Cues

• Erratic movements while going straight
• Operating without lights at night
• Recklessness
• Following too closely
• Running stop light or sign
• Evasion
• Wrong way

Good fodder for DWI lawyers in motorcycle cases where the defendant is stopped ‘only’ for speeding (which is pretty common)…page 5 of the brochure:

Motorcyclists stopped for excessive speed are likely to be driving while intoxicated only about 10 percent of the time (i.e., 10 times out of 100 stops for speeding). But because motorcyclists tend to travel in excess of posted speed limits, speeding is associated with a large portion of all motorcycle DWI arrests.

In other words, while only a small proportion of speeding motorcyclists are likely to be considered DWI, the large number of motorcyclists who are speeding results in a large number of DWIs, despite the relatively small probability.

In cross examination, this can be used if the stopping officer testifies that speeding is a sign of intoxication (which belies the common sense of the jury as well).

Also, the officer should be crossed on all the things your client did right: no drifting, no trouble dismounting, etc.

DWI lawyers should consider asking the officer whether the dismount itself is a useful sobriety test. Many officers will openly scoff at the notion…that’s fine. Prod him to insist that only the NHTSA field sobriety tests are appropriate for evaluating the likeliness of intoxication or impairment.

Then have him read this paragraph from pp7-8 from the NHTSA brochure:

Trouble with Dismount

Parking and dismounting a motorcycle can be a useful field sobriety test. The motorcyclist must turn off the engine and locate and deploy the kickstand. The operator must then balance his or her weight on one foot while swinging the other foot to dismount. But first, the operator must decide upon a safe place to stop the bike. Problems with any step in this sequence can be evidence of alcohol impairment.

And having absolutely no trouble with the dismount is at least some evidence of a lack of impairment, correct Officer? (Doesn’t matter how he answers; the jury gets the point.)

DWI Roadblocks to be Debated in Austin

Senate Bill 59, written by Sen. Judith Zaffirini, D-Laredo, gives police the authority to set up temporary sobriety checkpoints. The roadside barricades haven't been legal in Texas since 1994. A state court of appeals ruled them unconstitutional because the Legislature had not developed guidelines to ensure they were being conducted legally.

The bill would add (literally) a new chapter to the Texas Code of Criminal Procedure entitled “Sobriety Checkpoints”. This sort of legislation often sounds like a good idea at first…I mean, let’s get those drunks off the roads, right?

But make no mistake about though…this bill will authorize the police to stop vehicles without reasonable suspicion or probable cause. Non legal mumbo-jumbo translation?... The cops will be able to stop you for any reason, or for no reason at all.

They will then be allowed, after the fact, to “develop” probable cause to believe that an offense has been committed.

Unfortunately, the US Supreme Court has long ago ruled that DWI roadblocks can be constitutional, but the Texas Court of Criminal Appeals has so far not allowed them. This is truly a slippery slope folks…be careful what you wish for. It's not to late to tell your representatives you oppose this.

Is it legal to U-Turn at a No Left Turn sign?

I had a DWI client who was initially stopped for making a U-Turn at an intersection in Austin where there was a posted “No Left Turn” sign. Never having seen this exact situation before, I decided to do a little research to find out whether the detention was valid.

Oddly, it turns out that the Texas Transportation Code is nearly silent in terms of laws regulating U-Turns in Texas. Finally I stumbled across something I thought might help in the Austin City Code.

Austin City Code, Title 12, Traffic Regulations, Chapter 12-1 Traffic Regulation and Administration, Section 12 – 1 – 30. That Austin City Code provision says:

§ 12-1-30 U-TURNS RESTRICTED.

The driver of a vehicle may not turn the vehicle to proceed in the opposite direction at:

(1) an intersection or median opening on a divided street where a posted traffic sign prohibits turning in the opposite direction; or

(2) a location where the turn is not prohibited, unless the turn can be made safely and without interfering with other traffic.

My argument therefore was that the statute specifically provided that a person may not U-Turn (1) if there’s a “No U-Turn” sign, or (2) if it can’t be done safely.

My client was fortunate that the officer testified at the ALR that there were no other traffic violations besides making a U-Turn where there was a “No Left Turn” sign, that there was not a “No U-Turn” sign, and that the maneuver wasn’t a danger to other traffic around him.

At the pretrial hearing on the Motion to Suppress, I led the officer through the prior testimony. The judge initially took the case under advisement, asked for briefs and re-argument, and eventually ruled in my client’s favor, granting the Motion to Suppress. All evidence gathered after the detention was “thrown out” (as they say on TV), and it left the State with literally no evidence against my client.

By the way, the State’s argument - and it makes for a pretty good one on a common sense level - is that a U-Turn is necessarily two left turns.

Finally, I should probably point out that this is not only a very specific situation that doesn’t come up very often, and that it only applies in Austin – or other Texas cities with similar Code provisions.

Visual Detection of DWI Motorists - According to NHTSA

The NHTSA DWI Detection and Standardized Field Sobriety Testing Manual has a chapter devoted to “DWI Detection Phase One: Vehicle in Motion”. A list of 24 driving cues which “police officers may use to detect nighttime impaired drivers” is the meat of the chapter.

These same 24 cues are also listed in NHTSA’s booklet “The Visual Detection of DWI Motorists”. The chapter in the manual breaks these driving behaviors, most of which but not all are traffic violations, into four separate categories:

1. Problems Maintaining Proper Lane Position
2. Speed and Braking Problems
3. Vigilance Problems
4. Judgment Problems

The second part of Phase One: Vehicle in Motion is entitled “The Stopping Sequence”. In it, the officer is told to look for how the vehicle responds to the signal to stop (which will almost always be the activation of police overheads). Cues include:

1. an attempt to flee
2. no response
3. slow response
4. an abrupt swerve
5. sudden stop, and
6. striking the curb or another object

In most cases, while my client will probably be spotted initially committing a traffic violation, which may be included in the first 24 driving behaviors, the vast majority of times they exhibit none of the stopping sequence cues.

Absence of these cues, of course, does not prove the absence of intoxication. But, the defense is not required to prove innocence. Secondly, pointing out that all of these behaviors commonly associated with the typical intoxicated driver do not apply to my client can be useful for cross examination of the stopping officer.

[For those interested, The Visual Detection of DWI Motorists is available free of charge in booklet form upon request to: National Highway Traffic Safety Administration – Impaired Driver Division, 400 Seventh Street, SW., Room 5118, Washington D.C., 20590.]