Driving While Intoxicated (DWI) cases in Texas are common. They are probably the most litigated cases in our county courts. If you have ever had anything to drink and then driven a car, you have put yourself at risk of going to jail for DWI. I would estimate that 75% of all misdemeanor cases I take to trial are DWIs. Due to their prevalence in our society, a defense lawyer must be fluent in the science, terminology, and techniques related to DWI case.
NHTSA has a training program every peace officer takes in their academy. I have taken it 3 times. It splits DWI investigations into 3 different portions 1) Vehicle in Motion; 2) Personal Contact; and 3) Pre-Arrest Screening. You are being evaluated for different “signs” of DWI in each one.
Vehicle in Motion
In the first stage, the police are looking for 20 some odd driving cues that they believe are consistent with drunk driving. Things like swerving, weaving, taking a wide right turn, are all listed as cues. Speeding is not listed as a driving cue.
This phase is where the officer is trained to use his senses to detect any signs of intoxication. His sight for open alcohol containers, blood shot and glassy eyes, soiled clothing, etc. His hearing for slurred speech, how many drinks you had. His smell for odor of alcohol. The officer will use the first two phases to determine if phase 3 is necessary. It is a very minimum threshold. For example, if he doesn’t see anything in phase 1 but smells alcohol, get ready to do field sobriety testing in phase 3.
This phase is the one most think about during a DWI investigation. It involves an interview of the person, and then field sobriety tests. There are 3 “standardized” field sobriety tests (FSTs) that are part of the NHTSA training, and a handful of other tests they recommend in the event the FSTs aren’t appropriate for whatever reason, but those tests have no real standardization or reliability (I would also argue the same about the standardized FSTs). The first FST is the Horizontal Gaze Nystagmus (HGN) aka the “pen” test. The officer will take about 90 seconds waving his magic wand in front of your eyes and claim to see something that shows you’re intoxicated. Further, the officer will claim he can approximate your blood alcohol content from this test (my eyes are rolling and its not from nystagmus). The next test is the Walk and Turn, you know it as the walk the line. There are complex instructions, and 8 clues involved here. You don’t get to know what they are. If you show 2 of them, then you have “failed. Finally, the One Leg Stand is the final FST. This is where you have to stand on one leg for 30 seconds without putting your foot down, raising your arms from your side, swaying, or hopping. If you do 2 of those 4, then you’re out of here.
After the 3 phases the officer makes an arrest decision. If he believes he has probable cause (another low threshold for a decision), then you go to jail. Once you are placed under arrest, only then do you get a chance to provide a specimen of breath or blood. You should do neither. However, if you do, and you’re under the legal limit of .08, guess what? You still will spend the night in jail, be charged with DWI, and have to bond out and get a lawyer. If you find yourself or a family member in this situation, please give my office a call. I have the essential tools to fight your case and the advanced training to counter the officers involved. Save your license, save your job, and save your freedom.