DWIs or DUIs are some of the most litigated cases in the criminal justice system. They are fact-dependent cases, where strategy can change in a heartbeat as new information is revealed.
With Tiger it is easy to assume the worst, however, under the law the only assumption must be that of innocence. In fact, Tiger is guaranteed it. If he chooses a jury trial, he is guaranteed the right to a fair and impartial jury strong enough to hold the State in check; willing to require each and every element of the alleged offense be proved beyond a reasonable doubt. In other words assume the best, even if it is Tiger.
In part one of this two-part series, we’ll look primarily at the element of operating. In part two we’ll break down intoxication.
To start in order to convict a person for DWI or DUI the State must prove beyond a reasonable doubt that:
A person is intoxicated while operating a motor vehicle in a public place.
Because we know Tiger was found in his car on a public road, we’ll look past the elements of a person, motor vehicle, and public place.
But what about “operating”?
Skimming through available police and incident reports the issue of operating is in play and here is why.
Date: May 29, 2017
Time of Stop: 2:03 AM
Time of Arrest: 2:49 AM
Time of Breath Test: 4:22 AM
Time of Urine Test: Shortly after 4:35 AM
Officer Palladino was the first officer on the scene at approximately 0203 hours. In regard to operation, his report states:
- “ . . .dark colored sedan was not moving.”
- “The vehicle’s rear brake lights and right turn signal were still active.”
- “The vehicle was stopped in the right lane and its passenger side tires were partially blocking the bicycle lane . . . “
- “ . . . running vehicle . . .”
- “I advised the male to place the vehicle in park and turn the vehicle off. While speaking with the male Sergeant Hennessy arrived on scene . . .”
- “I again asked the male to put the vehicle in park and turn it off.”
- “Officer Imperiale arrived . . . and stood with Woods in the vehicle.”
Contrast with Sergeant Hennessy’s Report: “Officer Palladino . . . had located a disabled vehicle.”
See also Officer Imperiale’s Report: “Officer Palladino observed . . . a disabled vehicle . . .”
Why It Matters: While most people may believe driving while intoxicated means actually driving, courts have held proof of movement is not needed to meet the element of operating. For example, in Dornbusch v. State the court found sufficient evidence to establish the driver was operating a motor vehicle where officers found him passed out in the driver’s seat with the car running, in drive, headlights on, music playing and the curb being the only thing keeping the vehicle from moving. 262 S.W.3d 432, 433, 437-38 (Tex.App.-Fort Worth 2008, no pet.). On the other hand in Texas Department of Public Safety vs. Allocca the court found the motorist was not “operating” his vehicle while intoxicated after being found sleeping in the car with the front seat reclined, the car in park, the lights off, and the engine running. 301 S.W.3d 364 (Tex.App.-Austin 2009). The question becomes whether the State can prove the person “ . . .took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.” Denton v. State, 911 S.W.2d 388, 390 (Tex.Crim.App.1995).
So can the State prove Operating?
Maybe. Maybe not. We need to see more. While Officer Palladino’s report states Mr. Woods was asleep behind the wheel with the car running, in drive, and lights on, Sergeant Hennessey’s report, who was on the scene prior to Mr. Woods placing his car in park and turning the car off only refers to the car as “disabled.” Officer Imperiale’s report mirrors Sergeant Hennessey’s, calling the car “disabled.” Look up the definition of disabled and you will find “out of action”, in other words not on.
We know per Officer Palladino’s report his dashcam video was turned on when he pulled up behind Tiger’s car.
- “I pulled behind the stopped vehicle blocking the right-hand southbound lane activating my overhead lights and Dashcam video.”
That video should show if the car was running, in drive, with the brake lights on or if the car was “out of action.” If the video or portion of the video goes MIA, then the State will have bigger problems.
Another question that needs to be answered surrounds the car’s damage. Per the police reports:
Officer Fandrey’s Report: The later investigation revealed fresh damage to the vehicle. Both driver’s`side tires were flat along with minor damage to both respective rims. There was also minor damage to the front driver`s side bumper and rear bumper, and the passenger rear tail light appeared to be out.
Officer Imperiale’s Report: The damage that was noted is as follows: driver’s side front and rear rims were damaged and their respective tires were flat, the front bumper on the driver’s side was damaged, and there were some white scrapes and scuff marks on the rear bumper, and the passenger side tail light appeared to be out.
Where did this damage occur? How? When? Are there any witnesses? Did Tiger call anyone? Text anyone? Was Tiger driving? Was he with someone else? There have been reports Tiger may not have been alone. Although the person of interest, Instagram model Laci Kay Sommers denies being with Tiger that night/morning.
If you had been in an accident or had two flat tires, wouldn’t you pull off to the side? Would you put your car in park? Would you turn the car off? It it was 2 AM, fresh off major surgery, would you fall asleep?
Before we assume the worst, before sponsors jump ship, before we publicly convict, we need to know much more.
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 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.
(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.