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?
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.