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…

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.)