by Houston Criminal Defense Attorney

DWI Standardized Field Sobriety Tests

DWI Field Sobriety Tests (SFSTs) have 99 Problems . . .

. . . but, courtroom admissibility ain’t one.

Despite many issues with outdated field sobriety exerices, they continue to form the basis for DWI arrests and subsequent prosecutions.

 

1. Hired Guns: Many DWIs involve special DWI tasks force. Hired guns looking for and expecting to make DWI arrests.
2. Officer Street Bias: (see 1) It’s 3 a.m., you knicked a curb. Officer’s are looking for DWIs. You gotta be DWI.
3. Time & 1/2 : the officer receives time & a ½ to come testify in court. Aggressive DWI lawyers routinely contest the officer’s opinion you were intoxicated. DWI trials = officer bonuses.
4. Subjective: The decision to arrest a person for DWI is based on the subjective opinion & bias of the officer.
5. Political Influence: The day Mothers Against Drunk Driving was formed, is the day DWI laws changed forever. A DWI arrest alone can result in driver’s license suspensions, interlock devices, random urine tests, etc.
6. Probable Cause: All that is needed for an officer to make an arrest. A crime may have been committed. It is a low burden. Significantly lower than proof beyond a reasonable doubt.
7. Presumption of Guilt: trained officers have made an arrest, so they must be guilty???
8. Exercises designed to make arrests, not to prove intoxication. The Standardized Field Sobriety Tests were implemented to assist in arrests, not to prove DWI beyond a reasonable doubt.
9. Coordination Exercises designed to fail: you are not told what signs of intoxication the officer is looking for on the field sobriety tests and do not get credit for the things you do well.
10. Exercises place a person in abnormal situations. How often do you stand with your one foot directly in front of the other? How often are you balancing on one foot?
11. “You don’t know me, man”: The officer is meeting you for the first time: Under the law, the definition of intoxication includes not having the normal use of your mental or physical faculties. The problem is the officer has no idea what is normal for you.
12. What is Normal? Normal for you, is not normal for me. Normal for Lebron James is not normal for me (or I wouldn’t be writing this).
13. Isn’t an abnormal reaction to an abnormal situation normal? (see 10)
14. Sleep Deprivation: can mimic signs of intoxication.
15. Diabetes: can mimic signs of intoxication.
16. Head injuries: can mimic signs of intoxication.
17. Officer’s often fail to inquire into a person’s medical history (despite their training and instructions)
18. Nervousness can mimic signs of intoxication. Ever seen a professional golfer miss a 1 ft. putt? A gymnast miss the landing? Routines they have perfected and practiced thousands of times. Why? Nerves.
19. 1977 “Psychophysical Tests for DWI Arrest”: used in the development of field sobriety exercises. Narrowed 6 tests down to 3 (tAlcohol Gaze Nystagmus, Walk & Turn & One Leg Stand) while noting the tests “yield more precise results . . . in the station.”This study had a 47% false arrest error rate: Officer’s were wrong nearly ½ the time…in controlled environments.
20. 1981 “Development and Field Test of Psychophysical Test For DWI Arrests”: Expanded on the 3 field sobriety exercises and recommended an 18-month field evaluation.
21. The 18-month field evaluation was never completed.
22. But a 3-month field evaluation was in the 1983 study “Field Evaluation of a Behavioral Test Battery for DWI.” This evaluation required officers to administer field sobriety exercises to any person they suspected of DWI. This study was based on the Honor system, without researchers riding along to see if the tests were being administered correctly.
23. Zero of these “studies” have been submitted for peer review.
24. Zero of these “studies” have ever been published in any scientific journals.
25. No control group existed to evaluate a non-drinker or sober person’s performance on the exercises.
26. Shouldn’t the expert officer know the studies, the instructions, and the clues like the back of their hand? In court testimony often reveals just the opposite.
27. The Colorado Study: 1 out of every 8 participants failed the Horizontal Gaze Nystamus test although having a BAC under 0.05.
28. The Florida Study: 67% of all incorrect arrests had maximum clues on the Horizontal Gaze Nystagmus Test; 70% of subjects under 0.08 failed the Walk & Turn.
29. The San Diego Study: subjects under 0.08 were wrongfully arrested at a rate 6Xs more than those with a BAC over 0.08; 37% of subjects under 0.08 failed the HGN; 52% of subjects under 0.08 failed the walk and turn; and, 41% of subjects under 0.08 failed the one leg stand.
30. The Robustness Study: This study looked at minor deviations on the Horizontal Gaze Nystagmus (HGN) and the impact on determining impairment. An average false positive rate of 66.7% (76.9%, 54.1%, 69.2%) was reported.
31. Jim Booker’s peer-reviewed study, End Position Indicator of Ethanol Intoxication (Science and Justice 2001; 41: 113-116) finding alarming problems with the Nystagmus test, including:
32. 19% of subjects had nystagmus before consuming any alcohol;
33. 62% had nystagmus after reaching 0.00;
34. 56% had nystagmus an hour after reaching 0.00;
35. 37% people during absorption had nystagmus between 0.01 – 0.05;
36. During elimination, 68% had nystagmus between 0.01 – 0.05.
37. Not-Standardized? Non-standardized tests are often administered by the officer, like the Rhomberg test, also used to detect venereal disease.
38. Science? The National Highway and Safety Administration thinks so, many disagree.
39. Or Junk-Science: try to balance on one leg for 30 seconds and see how you do.
40. Show me the evidence? What happen to the on-scene video?
41. Mic Check? There is a video, but where did the sound go? Why does the officer turn his mic on and off?
42. Horizontal Gaze Nystagmus: Flashing Lights can cause nystagmus
43. Head Injuries can cause nystagmus
44. Medical Conditions can cause nystagmus
45. Eye Injuries can cause nystagmus
46. Nicotine can cause nystagmus
47. Caffeine can cause nystagmus
48. Natural Nystagmus & Resting Nystagmus: some (unknowingly) have natural nystagmus.
49. There are all types of Nystagmus
50. And the officer can’t tell the difference.
51. Test is Depressant specific, not alcohol specific: there are a lot of depressants other than alcohol.
52. Equal Tracking? Did the officer check to see if the eyes tracked equally?
53. Equal Pupil Size? Did the officer check the subject’s pupil size?
54. Dust can interfere with the test
55. Wind can interfere with the test
56. Officer holds stimulus too high – test invalid
57. Officer holds stiumulus too low – test invalid
58. Officer takes stimulus out too far – test invalid
59. Officer moves stimulus too slow – test invalid
60. Officer moves stimulus too fast – test invalid
61. Stimulus held out too long – test invalid
62. Stimulus held out not long enough – test invalid
63. Incorrect # of passes – test invalid
64. 82 seconds should be the minimum time it takes for the officer to perform the HGN.
65. Rubber Stamp: rarely do the officers not “find” 6 of 6 clues (or a strong odor of alcohol on your breath and red, blood shot glassy eyes).
66. What do the eyes look like? The officer can see the nystagmus (bouncing of the eyes), but no one else can.
67. Vertical GazeNystagmus: inadmissible and not standardized.
68. Walk and Turn and One Leg Stand: Incorrect Instructions – test invalid.
69. Officer distractions on the Walk & Turn and One Leg Stand can impact the subject’s performance. The officer should be quiet. The officer should be still.
70. Passing traffic can impact the subject’s performance.
71. The Walk and Turn Test and the One Leg Stand should not be conducted on a slippery, wet, or un-level surfaces.
72. Failing before you even start: the first two signs of intoxication on the Walk and Turn test are starts too soon and can’t balance during instructions. Two strikes and you’re out, meaning you can fail this test before you ever walk the line.
73. C = F: if you get 6 of 8 clues correct (75%) on the walk and turn you still fail.
74. What you don’t know will kill you: the officer doesn’t tell you what signs of intoxication or clues he is looking for.
75. Uses arms for balance is a clue. This means raising both arms more than 6”. You are not told this.
76. Steps off-line is a clue. This means one foot comes entirely off the line. You are not told this.
77. Heel-to-toe is a clue. You get a 1/2″. You are not told this.
78. Improper Turn is a clue. If you remove your front foot from the line while turning, you get docked.
79. Stops while walking is a clue. This should only be marked if you pause for several seconds.
80. During the One Leg Stand officer’s often tell subjects to pick their foot up if they put it down. That is not an instruction. Officer’s often tell subjects to point their toes, this is not an instruction.
81. Test too long or too short? Officer should discontinue the One Leg Stand at 30 seconds
82. Failing: 4 total clues. 2 strikes and you’re out.
83. Using arms for Balance is a clue (6+”). Aren’t we taught to balance with our arms out as kids?
84. Swaying back and forth or side to side is a clue. Who wouldn’t sway on one foot?
85. Age can impact performance.
86. Back & Leg Injuries can impact performance.
87. Inner ear problems can impact performance.
88. Your shoes can impact performance and you should be allowed an opportunity to remove them.
89. Inadequate Training: one week course is all it takes to become an expert.
90. Signs of Sobriety? They often outweigh the signs of intoxication.
91. Consistently Inconsistent: When a person does well on the tests, officer’s say their decision to arrest for DWI was based on the “totality of the circumstances.”
92. Form Police/Offense Reports: district attorney offices provide easy fill in the blank forms which feed the necessary signs of intoxication and field sobriety clues.
93. Accused 1^st time: The subject doesn’t know what to expect on the test.
94. Officer’s 100th+ time demonstrating the test. Practice makes perfect.
95. Refuse and be arrested: Your refusal will be taken as a sign of hiding intoxication.
96. Perform and be arrested: the officer’s mind was made up at “have you been drinking.”
97. Mi—randa? The officer will say you were not under arrest, so Miranda doesn’t apply. What you say will be used against you.
98. The Calvary: other officers (a.k.a. friends, colleagues, supervisors) on the scene will bolster each other’s opinion and testimony as to your intoxication.
99. Validity Compromised: Despite the officer’s training manual stating, “if any one of the standardized field sobriety test elements is changed, the validity is compromised”, Texas courts continue to find creative ways to allow improperly administered field sobriety exericises into evidence. The Texas Court of Appeals in Compton v. State concluded “slight variations” do not render the tests inadmissible. As such the DWI criminal lawyer must highlight all the normal and sober signs their client exhibited, while pointing out the inherent bias of these unforgiving and outdated exercises and trusting the jury to follow the law in reaching their final vedict.

by Houston Criminal Defense Attorney

Breaking: Immigration Consequences from a DWI Arrest

Immigration Consequences from a DWI Arrest

The Department of State has started revoking visas of foreign nationals legally in the United States after a DWI or DUI arrest. Collateral Immigration Consequences from a DWI arrest of the harshest kind. Merely an arrest, not a conviction triggers the potential revocation. Given the subjective nature of DWIs and potential for abuse, this new policy is frightening.

Currently the foreign national remains in lawful status after revocation, but is unable to apply for future admission to the United States. There are cases of immigration consequences from a DWI arrest within weeks of the arrest.

Not only may your visa be revoked, but your ability to travel abroad may be in jeopardy. Recent reports suggest visa holders traveling abroad are finding it difficult to re-enter the United States. Those most affected are students with J-1 visas.

These immigration consequences from a DWI arrest were implemented Nov. 5, 2015 and the department has wasted little time putting their new tool to work. Responding to critics, the Department said, “It is both a public safety issue and evidence of possible visa ineligibility.”

Previous DWI immigration consequences surrounded convictions. Consular officials have been required since 2007 to refer visa applicants with a DUI or DWI conviction in the a) past five years or b) two or more in the past 10 years to a physician. The physician is then charged with determining whether the applicant should be ineligible for a visa under a provision barring applicants classified as having a “mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety or welfare of the alien or others.”

In light of recent trends, it is clear the State Department is taking not only DWI & DUI convictions seriously, but arrests as well. If you are a foreign national and arrested for DWI or DUI you need to not only have an immigration lawyer, but a qualified DWI lawyer on board to fight the government’s accusations. Given these recent, harsh DWI arrest immigration consequences, Uber never looked so good.

by Houston Criminal Defense Attorney

Veteran Criminal Defense Attorneys – Eliminate the Threat

 

Recently media outlets reported the Navy Seal responsible for shooting and eliminating Osama bin Laden was charged with DUI.  Now, this special-ops veteran, willing to sacrifice his life to protect the United States, its people, and the government finds himself being prosecuted by that very same institution.

While the majority of veterans return home stronger and wiser from their service, many others bring their war home. Silently suffering from invisible injuries like Post-Traumatic Stress Syndrome (PTSD) and Traumatic-Brain-Injury (TBI). Feeling as if their native land is enemy territory, post-combat veterans may become confused and threatened. Trained to eliminate the threat, veterans fall victim to alcohol and substance abuse. As time progresses these symptoms worsen. When self-destructive, reckless and violent behavior turn to criminal behavior, should we be all that surprised?

Eliminate the Threat:

Early on and as part of a soldier’s training, the United States government employs an intensive psychological conditioning program encouraging violent reactions to threats. Fortunately for civilization, the vast population is not wired to kill and doing such is unnatural. In order to simulate warfare, combat-training focuses on turning that unnatural act into a natural one. Doing so not only enhances the likelihood of survival, but success and victory as well. Soldiers minds are shaped to reactively eliminate all threats. The end product yields an instinctive killing machine.  However, once service concludes, they are not adequately deprogrammed. When such unnatural training joins forces with psychological trauma, violent and criminal acts are a real possibility.

A Veteran’s War at Home:

Psychological trauma has long been a recognized consequence of veteran combat. Service related illnesses such as post-traumatic-stress-disorder (PTSD) and traumatic brain injury (TBI) have been associated with struggling veterans re-entering society post-tour. Veterans trying to cope with the battlefield horrors and families and communities unable to understand make American returns especially difficult. These invisible-injuries are often unreported and untreated, leading veterans to self-medicate with alcohol and drugs. Over time these substances exacerbate symptoms before the troubled veteran spirals downward into self-destructive, reckless, violent or criminal behavior. Even treated, medical professionals have linked anti-depressants to manic-like reactions, aggressiveness, suicide, loss of impulse control and violence. ¹ It has been a reported there are 22 veteran suicides a day. That’s 22 a day!

While recorded history dating back to early wars suggest psychological trauma may manifest into criminal behavior, only recently has this been studied. ²

The National Science Institute of Medicine (IOM) in 2012 released a report finding, “PTSD is commonly associated with substance abuse, unregulated anger, aggressive behavior, and hazardous use of alcohol, all of which are, themselves, associated with legal problems and incarceration.” ³

Prior to that report, in 2009, following a highly publicized wave of homicides and other violent crimes committed by returning soldiers, the Army commissioned a study known as the Epidemiological Consultation, or EPICON. ⁴ EPICON attributed two major factors to post-deployment violent behavior: (1) repeated deployments and (2) the intensity of combat in those deployments. The more soldiers were exposed to combat, the more they showed effects. This study is especially troubling in light of America’s most recent war and the number of multiple combat tours troops have served. Reports show a large number served at least two tours, with special-ops serving over twelve tours. ⁵ In contrast during World War II and Vietnam the majority of troops served only one combat tour. ⁶ The above mentioned IOM report listed over 500,000 PTSD diagnosed veterans from Iraq and Afghanistan and expects that number to climb. [see Comm. on the Assessment of Ongoing Efforts in the Treatment of Post-traumatic Stress Disorder, Inst. of Med. of the Nat’l Academies, Treatment for Post-traumatic Stress Disorder in Military and Veteran Populations: Initial Assessment at 322. [/ref] That number does not include the many veterans who are self-medicating and yet to be medically diagnosed. The evidence clearly supports there is a high number of post-combat veterans in America wrestling their inner-demons.

The State of the Criminal Justice System and Veterans:

In the past, post-combat trauma turning into criminal behavior had been discarded by the criminal justice system. Veterans were sentenced to prisons, asylums, or chronic homelessness. In fact, a 2004 report by the Bureau of Justice Statistics found, despite having shorter criminal records, veterans reported longer prison sentences than nonveterans (on average 22 months longer). ⁷ The justice system viewed soldiers as a threat, instead of focusing on the actual threat, their mental health.

Fortunately progress is being made. The federal government, for example, under Section 5H1.11 of the U.S. Sentencing Guidelines illustrates the need to distinguish the veteran defendant from other defendants via service and experiences. Similarly the United States Supreme Court in Porter v. McCollum (2009) highlighted failure of defense counsel to present the veteran’s combat service and resulting trauma at sentencing was sufficient grounds to support a claim of IAC.

State courts have followed suit implementing a number of veteran courts specifically designed to treat as opposed to sweeping soldier’s internal issues under the rug. Low-level offenses often end in dismissal under these programs, allowing veterans the opportunity to expunge or erase the incident entirely. Houston courts have initiated such programs for veterans.

Growing sympathy for veterans from the prosecutorial side has even shown to be significant. A study polled 35 prosecutors from various states and found “overall, prosecutors view veterans as less-blameworthy for low-level offenses than nonveterans.” It was also shown veterans were offered heavy treatment programs as opposed to jail or probation like the counterpart nonveteran defendants. ⁸ Jennifer Kelly Wilson, et al., Prosecutor Pretrial Attitudes and Plea-Bargaining Behavior Toward Veterans With Post-Traumatic Stress Disorder, 8 Psychol. Services 319, 322. 326 (2011). From a practice standpoint, I have found prosecutors eagerly willing to listen and accept documents supporting a veterans criminal case.

Defending the Veteran:

Similarly, defense counsel for veterans have become more aware of mental illnesses a veteran may be struggling with. Using such things as VA medical records, service records, honorable discharges, honors and awards, etc., criminal defense attorneys are able to paint a complete picture to the trier of fact. This picture provides an outlet for the decision maker – whether it be the dismissal of charges, a not guilty verdict, or a mitigating sentence.

One cannot predict who will and will not suffer from these silent and invisible injuries. I know and have spoken with veterans who have come back and been able to channel their inner-struggles into something positive. Strong community ties and supports systems assist them greatly. Unfortunately, not everyone is able to shake what they have endured and witnessed. I have great admiration and respect for all veterans. For those still at war with themselves we must continue providing healing environments. We must eliminate the threat.

by Houston Criminal Defense Attorney

Houston DWI Attorneys

As a result of limited public transportation and endless resources allocated to arresting intoxicated drivers, Houston consistently finds itself atop DWI arrests.   The best advice is to not drink alcohol or use drugs (this includes prescription drugs) and drive. However, it is not illegal to drink alcohol and drive. It is only illegal to drive while intoxicated. Understand, if you drive after having anything to drink at all an officer may note the odor of alcohol on your breath and began a DWI investigation. If you find yourself in such a situation, follow the steps below.

Houston DWI Attorneys Tips

Houston DWI Attorneys Tip No. 1 – The officer just turned on his overhead lights, what do I do?

You should drive to the right lane as cautiously and quickly as possible, using your blinker. Continue there until you can either safely park on the shoulder or pull into a parking lot. An officer is trained to note how quickly you respond to his overhead lights, whether you use your blinker, and whether you pull over in a timely and safe manner.

Houston DWI Attorneys Tip No. 2 – I’ve pulled over, now what?

Put your car in park, turn off the engine, the radio, and put on your emergency or hazard lights. Be aware of where your driver’s license and insurance are, but don’t go digging around just yet. The officer will take note on your ability to locate your driver’s license and insurance. Unfortunately, when it comes to DWI investigations, many innocent acts may be twisted into guilty acts. For example, most people do not know where their insurance is and may have difficulty finding it whether or not they are intoxicated.

Houston DWI Attorneys Tip No. 3 – The officer immediately asked “Have you been drinking?”, what should I say?

If you have not been drinking the answer is simple. If you have been drinking, you will have an odor of alcohol on your breath. While the officer can not gauge how many drinks you had by the odor, it makes little sense to deny that you had a drink or two. If the officer is immediately asking you about alcohol, then he believes you may be DWI.

Houston DWI Attorneys Tip No. 4 – Do I have to answer the officer’s questions?

No. Remember you have the right to remain silent. You can politely ask the officer:

1) Why did you stop me?

2) Am I free to leave?

3) Am I being detained?

4) Am I under arrest?

If the officer says “You are being detained or under arrest.”, reply “I would refuse to answer any more questions or perform any tests, without my lawyer present.” Be polite, but be firm. Try to reach your Houston DWI Attorneys.

If the officer says, “You are NOT under arrest and are free to leave.” Count your blessings and move along.

Houston DWI Attorneys Tip No. 5 – Should I do the field sobriety exercises?

(The Horizontal Gaze Nystagmus Test or “pen test”; the Walk and Turn or “walk-the-line”; and the one leg stand)

No. Understand the sobriety exercises, like the walk and turn and the one leg stand, are more akin to coordination exercises. There are people who would never be able to do such tests. Such people should always refuse the tests. Other people, may be able to do well on the tests.  Remember though that you are likely nervous, outside, in a parking lot (that may be sloped or uneven), with cars driving by and a police officer or two judging every move you make. In other words the awkward and unnatural nature of the tests become even more awkward and unnatural. Furthermore, the officer is looking for clues of impairment. He doesn’t tell you what those clues are. It would be similar to taking an exam where you didn’t know what materials the exam covered. If you had the choice to not take that exam, you wouldn’t and you do have the choice to refuse the coordination exercises.

Houston DWI Attorneys Tip No. 6 – Should I do the blood test?

No. You have the right to refuse the blood test. If you refuse the officer may go get a warrant to draw your blood. If the officer does than you must submit to the blood test. While blood warrants are becoming more common, officers don’t always get one. If they don’t, they can’t and won’t draw your blood.

Houston DWI Attorneys Tip No. 7 – Should I do the breath test?

No. While there is some merit to submitting to the breath tests, if you think the officer will get a warrant to draw your blood, it is easiest to remember to refuse everything. Unlike the blood test, the officer can’t force you to do a breath test.

Houston DWI Attorneys Tip No. 8 – But won’t my license be suspended if I don’t submit to the breath or blood test?

Maybe. Within 15 days of your arrest, your Houston DWI Attorneys can request a license revocation hearing contesting the suspension. Many times and contrary to what the officer told you, your license is not suspended.

by Houston Criminal Defense Attorney

Miracle Defense – DWI

by Houston Criminal Defense Attorney

DWI – Collateral Consequences

A DWI arrest and conviction can carry stiff repercussions and harsh financial penalties.  That’s the bad news, the good news is you can fight the DWI!

by Houston Criminal Defense Attorney

DWI – Breath Test Machines

If you have been arrested for DWI and submitted to a breath test, there are many factors that may have caused an elevated result.

by Houston Criminal Defense Attorney

State vs. Michael Phelps – DWI Defense

On October 1, 2014 at 1:40 a.m., Michael Phelps was arrested for Driving While Intoxicated.  Media outlets, sponsors, and high ranking swimming officials have been quick to assume intoxication, but was he?  What follows is an explanation of the events we know occurred, included an explanation of the breath test machine.

The National Highway Traffic and Safety Administration (NHTSA) is the “go-to” authority in detecting possibly impaired drivers.  They developed the Standardized Field Sobriety exercises to assist and coordinate police conduct during DWI stops and investigations.  NHTSA provides a 24 hour (three-day) course that teaches the background, administration and scoring for standardized field sobriety exercises.  The goal is to aid police officers to know when to stop drivers who may be intoxicated and conduct an investigation to confirm or deny their suspicions.  The problem is the police officers may have only taken this class once, often years ago, and often fail to follow the proper procedures and protocol taught by NHTSA.

NHTSA breaks the DWI investigation into three stages:

1) Vehicle in Motion; 2) Personal Contact; 3) Pre-Arrest Screening

The following is based on the FACTS we know thus far.

Phase One Vehicle in Motion:

Phelps was allegedly clocked going “84 in a 45” and “drifting out of his lane”.  Pending evidence the radar was calibrated and used correctly the stop will likely be held lawful.

Speeding is a lawful reason for an officer to stop a citizen.  Speeding is not however, an indication of intoxication.  Common sense would tell you people speed every day, whether or not they have alcohol in their system. NHTSA lists a number of visible cues to identify intoxicated drivers and speeding is not one of them.  Drifting is considered a cue of intoxication, but reading the reports literally one may conclude this was merely a single drift.  If he was traveling 84 mph, in a range rover, a drift would be expected and normal.  The highest criminal court in Texas, the Court of Criminal Appeals has said this much, stating “driving in and of itself is controlled weaving”.

At this stage it is unknown whether or not a video from the police vehicle exists.  If a video exists it may clear up some of the above.  If a video does not exist, it can be inferred it was favorable to Mr. Phelps.

Phase Two: Personal Contact:

Personal contact encompasses the face-to-face encounter with the officer and the subject (Mr. Phelps).  During this phase the officer should be making the decision whether or not he will have the subject perform the field sobriety exercises.  The officer is using his sense of sight, sense of hearing, and sense of smell sight in making the decision.

Sight:  The officer noted Red/Bloodshot Eyes;

Sound: The officer noted “mushed speech” and “admission to drinking”

Smell:  officer noted “smelled alcohol”

(other clues the officer could have noted but did not are soiled clothing, fumbling fingers, alcohol container, drugs or drug paraphernalia, bruises, bumps, or scratches, unusual actions, inconsistent responses, abusive language, unusual statements, “cover up” odors, etc.)

Red/Bloodshot eyes:  The officer is taught there are a number of things other than alcohol that can cause red/bloodshot eyes.  Fatigue is one.  We know Phelps came from a casino; It was almost 2 a.m.; he had been staring at cards and dice for hours; there may have been cigarrete smoke in close proximity.  I have been to a Casino or two in my day.  I have played cards.  I have never left a casino floor without red/bloodshot eyes.  Red/Bloodshot eyes in Phelps’ situation is normal.

Smelled Alcohol/Admission to Drinking:  Phelps said he had “3-4 beers”.  Despite what prominent Texas billboards may say it is not against the law to drink and drive.  Admitting to “3-4 beers” and smelling like alcohol is normal.

Mushed Speech”: Did the officer mean slurred speech?  A scene video would help explain “mushed speech”.  It would also be interesting to compare interviews Phelps has done over the years vs. how he sounds on the police video.  Mushed speech is not recognized by NHTSA as a sign of intoxication.

Phase Three: Pre-Arrest Screening (the field sobriety exercises):

a) Horizontal Gaze Nystagmus (HGN or “pen” test)

During the HGN test the officer has the suspect follow the motion of a small stimulus (i.e. pen) with their eyes only.  The officer is looking for involuntary jerking or bouncing of the eyes as they move toward the side.  Each eye is examined for three specific clues (6 total clues).

While I have yet to find a report indicating whether or not Phelps failed this test, my experience in how officers grade this test tells me he did.  I once had an officer fail an individual (6 clues) with only one eye (the other eye was a glass eye).  There are a number of factors that can effect the results of the HGN test.   For example, the test must be administered properly (happens less often than you would think); Additionally, there are multiple types of nystagmus unrelated and indecipherable from alcohol related nystagums.

A scene video would be the best indication to whether the test was administered properly.

b) Walk and Turn (walk the line)

We are told Phelps broke-heel-to toe stance; counted out loud; had difficulty with balance while walking; and had difficulty with balance while turning.

The clues the officer is trained to look for are: cannot balance during instructions (i.e. breaking heel-to-toe during the instruction phase); starts too soon; stops while walking; does not touch heel-to-toe (i.e. 1/2+ space between heel and toe an any step); Steps off line; Uses arms for balance (i.e. raising arms for balance more than 6″); Improper Turn; and incorrect number of steps.  If the officer notes 2/8 clues, you fail.  In fact, you can fail this test before you have taken a single step (see cannot balance during instructions and starts too soon).  In Phelps’ case the only standardized clue noted is broke heel-to-toe stance or cannot balance during instructions.  That would be 1/8 clues and a passing grade.  Without seeing the report, I’m assuming the officer added uses arms for balance and improper turn.  Giving Phelps 3/8 clues and meaning he did more things right than wrong.  Counting out loud is not a clue and the officer actually instructs the subject to count out loud during this exercise.

c) One Leg Stand

Here the officer is taught the four standardized clues are: sways while balancing; uses arms for balance; hops; puts foot down.  2/4 clues is an indication of impairment.

From what we know, Phelps “swayed slightly” and “didn’t look at elevated foot”.  I won’t address not looking at the elevated foot because that is not a standardized clue.  Subtracting that we are left with “swayed slightly”.  Again, a video would assist to see just how much sway there was, but even if Phelps did sway (remember he is on one leg), that would only be 1/4 clues and a passing grade on the one leg stand.

THE BREATH TEST = 0.14 –

Note: the breath test is being examined under the machine used in Texas (Intox5000EN)

The breath test machine currently in use in Texas is the Intoxilyzer 5000EN, manufactured by CMI, Inc.  CMI continues to service Texas’ machines, but the machine itself has been replaced at CMI by the Intoxilyzer 8000 and now the Intoxilyzer 9000.  Needless to say the Intoxilyzer500EN is outdated.  In fact it uses the same micro processing chip as ATARI.  Remember pong?

http://youtu.be/5uuxFhUc8tg

In Texas, intoxication must be proved at the time of driving, not the time of the test.  The time of the breath test is certainly important.  If the test was a few hours later the State will be unable to prove Michael Phelps was over 0.08 at the time he was driving.

Additionally, in order for there to be a valid test, and to protect against “residual mouth alcohol” (think a burp, belch, regurgitate, etc.), a certified breath test operator MUST administer a 15 minute waiting or observation period.  If this is not done correctly, the test is not considered scientifically reliable and is inadmissible as evidence.

Speaking of science, the 0.14 could be walked down to below a 0.8 taking into consideration:

– The machine’s recognized tolerance of +/- 0.02 (i.e. 0.12)

– The machines recognized potential error of +/- 0.01 (i.e. 0.11)

– The machines partition ratio.  The partition ration is the assumption the concentration of alcohol in the person’s blood is 2100 time the concentration of alcohol in the person’s breath or 2100/1.  Why does this matter?  The partition ration can affect the overall result and studies have shown the ratio can vary from 1000/1 to 3005/1.  Taking the 0.11, and using a partition ratio of 1000/1 would put Mr. Phelps at (0.11/2100 * 1000 = ) at 0.05, well below the illegal 0.08.

– Breath Temperature, Interferents,  Acid Reflux Disease, Breathing Patterns, etc. are all things that can influence a false high on the machine.

In conclusion, after seeing Mr. Phelps’ video and assuming he looks normal, his case is certainly defendable.  People trust their eyes.  If he looks good on video, if he doesn’t look intoxicated, jurors will trust what they see over the mysterious machine that should have been retired long ago with ATARI.  A machine the manufacturer, CMI, refuses to warrant “fit for its intended purpose”.  While the media is quick to assume Mr. Phelps was intoxicated, the FACTS seem to weave a different story.

 

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