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.)