RESULTS:
DRIVING WHILE INTOXICATED (DWI)

Driving While Intoxicated

My client was drinking underage when he was pulled over in his neighborhood for a traffic violation.   The video showed that the officer botched the horizontal gaze nystagmus test (the wave the pen in front of the eyes test) and that my client did reasonably well on the walk and turn test, even though he did fail that test according to National Highway Traffic Safety Administration (“NHTSA”) standards.  The probable cause affidavit indicated that my client passed the one leg stand test, even though the video tape told a different story.  The prosecutor was using my client’s incarceration to pressure my client to plead to the DWI.  This is powerful leverage the State has over a defendant, and I fear that many people who are falsely accused of crimes plead simply to get out of jail and go back to work, to avoid losing their jobs, homes, and marriages.  I discussed my client’s options with him and he opted for a jury trial, instead.

Result: case dismissed.
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Driving While Intoxicated

My client, an attractive young woman dressed for a night out with friends, was stopped very early in the morning for nearly driving into some cones that were blocking off the street.  The police officer even claimed that my client nearly hit his patrol car, “nearly” being the operative word. 

The videotape of the field sobriety tests showed that it was very difficult to hear what the officer and my client were saying because there was a road repair crew with their heavy equipment in the background.   But you could hear my client admit to drinking 4 pints of beer and that the officer repeatedly admonished her not to move her head during the HGN test.  My client exhibited 4 of the 8 possible clues on the walk and turn test, 2 of the 4 possible clues on the one leg stand test, and estimated 52 seconds as being 30 seconds on the (non-standardized) Romberg balance test.  

The videotape also showed that my client could well have felt pretty intimidated when surrounded by three male police officers, especially dressed as she was.   The officers plainly were either unaware of how uncomfortable they made my client.  There was no apparent need for so much close security on a young woman who was not armed, cooperative, and compliant.

Result: case dismissed.
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Driving While Intoxicated

On a very windy evening, my client was driving himself and two friends out of Austin when he was pulled over by the Texas Highway Patrol.  The trooper botched the horizontal gaze nystagmus test (the wave the pen in front of the eyes test) by failing to clear up the issue of whether my client had suffered a head injury and by moving his pen too fast and too low.  The pen is supposed to be held slightly above eyebrow level, but the trooper held it below my client’s eyes.   My client was considerably taller than the trooper.  The trooper scored my client as having exhibited 4 of the 8 possible clues on the walk and turn test and 2 of the 4 possible clues on the one leg stand test.

Result: case dismissed.
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Driving While Intoxicated

The police officer was going to testify that my client ran a red light.  He turned on his emergency lights and she pulled over, using her signal appropriately.   Once he smelled alcohol on my client's breath, he asked her to step out of the car and do the "field sobriety tests."  On the ‘wave the pen around in front of the driver's face’ test, the officer held the pen too close to her face, held the pen too high above her head, and moved it too quickly. 

My client exhibited 4 of the 8 possible clues on the Walk and Turn test, but I showed the prosecutor that one clue wasn't her fault, since the officer's mistakes in giving instructions failed to tell her what she needed to know. 

My client's one leg stand test was just not very good.  There's no other way to put it.

Driving While Intoxicated

My client was pulled over for speeding and other traffic violations. The officer became immediately upset with everything my client did, up to and including how he handed over his driver's license. I checked the officer's disciplinary history and it was extensive -- particularly with how he dealt with hispanics -- and my client was Hispanic. The video cut out altogether shortly after the officer appeared to be in danger of completely losing his temper.

Result: case dismissed.
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Driving While Intoxicated

In this case, the officers quickly acknowledged that my client could not speak English, but once the Spanish speaking officer arrived, the Field Sobriety Tests turned into a train wreck. By that I mean, during the "wave the pen test" the pen went both up and down and side to side. The instructions on the walk and turn test were sometimes given correctly in English, but sometimes mis-translated, or the instruction was omitted in Spanish altogether.

Result: case dismissed.
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Driving While Intoxicated

My client was pulled over for speeding, nothing more. He was polite and cooperative with the officer. During the "wave the pen in front of the driver's eyes test," the officer had set the camera in his car so low you couldn't see how well he administered the test. The officer demonstrated and explained the walk and turn test incorrectly. My client's performance on the one leg stand was not great, but not too bad.

Result: case dismissed.
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Driving While Intoxicated

Early one morning, my client's vehicle was stationary, and partly on and partly off, an entrance ramp to the MoPac expressway. So the police had a legitimate public safety interest in checking into what my client was doing. They found him asleep (literally) at the wheel. They got him out of the vehicle. The first thing my client (who comes from an Asian country) said was "I don't speak English." One of the officers just really did not care at all. He deliberately manipulated my client into performing Field Sobriety Tests, the instructions to which my client could not understand. He repeatedly (and illegally) asked my client whether he would blow. At first, my client said "no." When asked again, my client again declined. When asked a third time, my client's answer was "I can't do that." When asked yet again, my client said "I want to go." The law is that the officer can only ask once. And when the officer has gotten a "no" from the accused driver he has to stop asking whether the driver will blow. My client blew a .212 and a .215, a little less than 3 times the limit. The judge suppressed the breath test result.

Result: case dismissed.
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Driving While Intoxicated

Client was pulled over by an officer who testified at the ALR hearing that my client's turn on the "walk and turn" test was incorrect. Since it appeared identical to how the officer had demonstrated it to my client, I asked what about it was incorrect. After all, my client took just as many steps in the "series of small steps" in the turn as was demonstrated to him. The officer simply replied "it's just incorrect."

Result: Client kept his license and the criminal case against him was dismissed.
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Driving While Intoxicated

Client was speeding when he was pulled over. The officers asked him to walk over to a parking lot where the slope was very noticeable to perform his walk and turn test. Also, it had been raining and was slippery. Video was grainy and out of focus during the horizontal gaze nystagmus (or "pen" test), but it appeared the officer had his pen too close to client's face. Officer said client could not remain in the instructions position but the video showed otherwise. Client passed the One Leg Stand test with flying colors though officer said he swayed and used his arms for balance.

Result: case dismissed.
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Driving While Intoxicated.

Client was pulled over for speeding and admitted to drinking 4-5 beers. This was a classic case of officer ignorance and arrogance. Specifically, the trooper when demonstrating the turn on the "walk and turn" test, demonstrated the turn wrong. If done correctly, the trooper would have left his lead (left) foot in place and then turned to his left by using his back foot to move around. Instead, the trooper turned to his right. Then (ironically) the trooper claimed my client did the turn wrong, having assumed that he had demonstrated the turn correctly.

Result: case dismissed.
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Driving While Intoxicated

AA1st was arrested on graduation night at the University of Texas. He was there to help his girlfriend celebrate her graduation. Here is what happened from the police video. The video started at some completely irrelevant location. We can see the officer drive towards the south mall of the UT campus. When the police car first rolls up, it is impossible to tell where anyone is. It isn't that it is crowded. The problem is that the officer hasn't yet gotten close to the few people who are there. Eventually he drives his patrol unit forward and we can see that another officer had just finished administering the first of the three Standardized Field Sobriety Tests ("SFSTs"). So we really have no idea how well the test was administered. Even when the Walk And Turn test is done the video is of poor quality. We can hear neither what the officer said nor what my client said. We can only clearly see how my client performs on the test, not how it is explained to him. And if my client was instructed incorrectly, and then performs as he was instructed, it would not be fair for him to be penalized. Finally, when it comes to the One Leg Stand, we see that my client did okay. This case was set for trial and was on the jury docket on many settings. But when my client's case was finally reached, the State finally offered something that my client felt he could not turn down, and the State dismissed the DWI charge.

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Driving While Intoxicated

Client was clocked at 75 MPH in a 55 MPH zone on I-35. Client's vehicle drifted from the left lane into the middle lane, then straddled both lanes. Police officer watched client's vehicle swerve into the right hand lane, which was occupied, and watched the vehicle that already occupied the right hand lane swerve to avoid collision. Officer pulled client over and gave him field sobriety tests. Client failed all three. Client agreed to blow, and the result was .115 both times.

Result: case dismissed.
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Driving While Intoxicated

Client had 2-3 whiskey and cokes, then was trying to drive friends back home when was pulled over. Officer interfered with the client as he performed the Field Sobriety Tests. Case nearly went to trial, but State decided not to try the case, and instead to offer a non-alcohol related charge.

Result: DWI charge dismissed.
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Driving While Intoxicated.

Client drove back to Austin from attending out of town funeral of family friend. Client was very upset, crying, and had a drink before leaving funeral. When pulled over, client was speeding. Police officers had client perform the "walk the line" test on large speed hump, so that client had to walk both uphill and downhill during the test.

Result: case dismissed.
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Driving While Intoxicated

This is a good example example of medical conditions that existed before the arrest having affected the validity of the officer's opinion that my client was intoxicated. The police originally noticed my client because he had parked on a median of a freeway on-ramp. My client had parked there because his car had become inoperable. My client told the officer that he was on several heart medications. After the arrest, my client's doctor fine-tuned his prescription of heart medications, reducing the dosage of one medication and eliminating the other completely because the combination of drugs was causing my client to become dizzy and lose his balance. Also, my client's doctor really stepped up, took responsibility, and wrote in his letter to me that he had orally instructed my client that he could consume alcohol in moderate amounts, even when taking the medications.

Result: DWI Case Dismissed.
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Driving While Intoxicated

This case was an old-fashioned battle about how well the police officer administered the field sobriety tests. As for the pen test, the officer held the pen way too high and moved it more diagonally than horizontally and she held the pen too close to my client's face, when she should have held it 12-15" away from his face. The walk and turn test was a closer call, mostly because of the officer's somewhat aggressive grading. The one leg stand test was interesting, because the officer allowed my client to start the test and then (as officers often will) tried to make a secret, quiet comment to herself on the audio of the tape that she saw my client's foot go down. The problem was: her comment was neither secret nor quiet. It sounded like a command, not a "note to self." So my client, in obedience to the command he heard, put his foot down. This was all good grist for the negotiation that led to my client's DWI case being dismissed.

Result: DWI Case Dismissed.
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Driving While Intoxicated

This is a good example of using legitimate medical problems that existed before the arrest. This client had extensive nerve damage, which we documented with many medical records. The fact of the matter was that he could not have performed the field sobriety tests stone cold sober because of his medical condition. We proved that and got the right result.

Result: DWI Case Dismissed.
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Driving While Intoxicated

This is another good example of using legitimate medical problems that existed before the arrest. Before his arrest, this client had surgery on his pelvis, and had on-going pain. He told the police officer about all of that, but they still wanted him to do the walk and turn and the one leg stand tests.

Result: DWI Case Dismissed.
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Driving While Intoxicated

This is yet another good example of using legitimate medical problems that existed before the arrest. This client had had eye surgery which had not gone well and had knee surgery. The eye surgery, of course, affected his ability to perform on the "pen" test and the bad knee affected his ability to perform on the walk and turn and on the one leg stand tests.

Result: DWI Case Dismissed.
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Driving While Intoxicated

Client had driven his vehicle west bound on 6th Street across Lamar and was pulled over for speeding. Client was an Iraq war veteran, who had been wounded in the legs by shrapnel from enemy mortar rounds. Police officer questioned client in rapid fire fashion about his health, among other things. In answer to one of the rapid fire questions, client said "no, sir," in answer to whether he had any health problems. Then the field sobriety tests began. When it came time for the "walk the line" part of the tests, client brought up that he had been wounded in legs and suffered nerve damage. Officer behaved as if client were making up a story about being wounded in the legs in combat, even though client was wearing shorts and wounds were visible. Result: Dismissed. Click here to see enlarged image.

Driving While Intoxicated

My client went with some friends to a club on 6th Street to see a band. Client's plan was to drive down in his car, see the show, have a few drinks, and then get a ride back home with his designated driver. At some point during the show, client decided he'd had way too much to drink, so he walked outside to get some air. It was warm out, so client went to get in his vehicle to turn on the air conditioning. Witnesses said that before client made it to his vehicle, he vomited. Then client got in, turned the engine on, turned the air conditioning on, and passed out. The police arrived. The first thing client said was "I'm way too drunk to drive." Police asked client to perform field sobriety tests. Client said he was too drunk to do that, too. Police asked client to blow. He did, and his result was approximately .161. Case was set for jury trial, the whole issue being whether client had "operated" a motor vehicle.

Result: Dismissed.
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Driving While Intoxicated

The DWI Task Force officer said that my client showed 6 clues out of a possible 6 on the pen test. But even the officer admitted that my client did not make a single mistake on the Walk and Turn test. The officer contended that my client failed the One Leg Stand test. Case was set for jury trial.

Result: Dismissed.
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Driving While Intoxicated

Client was pulled over for speeding early in the morning in a neighborhood. Field sobriety tests were administered. Client did well on the Walk and Turn test, but swayed and used his arms for balance on the One Leg Stand test. During the ALR hearing, the officer admitted that he had incorrectly administered the Horizontal Gaze Nystagmus test. (My client kept his license. See below.) I showed the prosecutor that my client's performance during the One Leg Stand test was due to a pre-existing medical condition.

Result: Dismissed.
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Driving While Intoxicated

Client was pulled over for speeding while driving northbound on I-35, after taking the flyover exit to US 183 northbound. The officer elected to have client perform the Field Sobriety Tests (FSTs) at the highest part of the flyover, on a windy day, with cars whizzing by at freeway speeds. Officer repeatedly interrupted client during the client's performance of the FSTs when he should have just stood back and observed.

Result: DWI Case Dismissed.
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Driving While Intoxicated

Client collided with another vehicle in downtown Austin. Client admitted to having some strong drinks before driving. Police officer administered field sobriety tests, then said my client failed.

If you look closely at the Dismissal Form, you'll see an "x" next to a sentence that says "The case has been refiled." That means that the case was reduced from a DWI case to a non-alcohol related charge my client was willing to plead "no contest" to.

Result: DWI case dismissed.
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Driving While Intoxicated
Class A Misdemeanor

Client was pulled over for speeding. Police officer administered Field Sobriety Tests, then said my client failed. Police arrested client, then searched him and found a controlled substance in his pocket. If you look closely at the Dismissal Form, you'll see an "x" next to a sentence that says "The case has been refiled." That means that the case was reduced from a DWI case to a non-alcohol related charge my client was willing to plead guilty to.

Result: DWI case dismissed.
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Driving While Intoxicated

The prosecutor's case was weak and I showed them that. They offered to dismiss the DWI if my client would plead to a "reckless driving" charge. My client felt he could not turn down their offer.

Result: case dismissed.
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Driving While Intoxicated

The Administrative License Revocation hearing went well for my client because the Administrative Law Judge decided that the Department of Public Safety had tried to push past the boundaries of the hearsay rule. Here's how it went down. Some unknown person called 911 and said my client had failed to pay for a drink and that he "didn't look right." The unknown 911 operator dispatched an officer to the scene. The officer who arrived and found my client behind the wheel trying to start the engine did not show up to testify. The officer who did testify could not say of his own personal observation that my client was operating, or even attempting to operate a motor vehicle. So, if there was no proof of driving, then there was no proof of driving while intoxicated.

Result: Client kept his driver's license.
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Driving While Intoxicated

The University of Texas Police Department pulled my client over for running a stop sign, smelled alcohol on my client's breath, and had him get out of his car to perform Field Sobriety Tests. The second UTPD officer who arrived arranged his car and his camera so far back that my client and the officer who gave the Field Sobriety Test could barely be seen. My client didn't blow and the UTPD video was basically worthless.

Result: Dismissed.
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Driving While Intoxicated
License Revocation Hearing

My client was pulled over for allegedly speeding in a residential neighborhood. The officer who administered Field Sobriety Tests admitted under my cross-examination that he administered the tests, including the Horizontal Gaze Nystagmus (sometimes called the "pen" test) incorrectly. After you click on the images next to this, you can roll your arrow over the image, and an icon comes up to make the image bigger. Click on that and you can read the order for yourself.

Result: License revocation case Dismissed.
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