DWIs or DUIs are some of the most litigated cases in the criminal justice system. They are very fact-dependent cases, where strategy can change in a heartbeat depending on how the facts play out.
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 broke down the element of operating. In part two we’ll look at intoxication or impairment.
To start, the legal definition of DUI or DWI in Florida is similar to Texas, providing in order to convict a person for DWI or DUI the State must prove beyond a reasonable doubt that:
The person is intoxicated while operating a motor vehicle in a public place.
The State must prove the person was intoxicated at the time of driving.
Intoxication must be proved by showing a person has lost the use of their normal mental and physical faculties through alcohol or drugs, or a person has a blood alcohol level that is 0.08 or higher at the time of operating/driving. In this case and because there is no per se level of intoxication for drugs, the latter method of proving intoxication is inapplicable.
How the State will try to get there:
Prosecutors will attempt to show Tiger had lost the use of his normal mental and physical faculties at the time of driving through the introduction of drugs. To do so, they will use a combination of the alleged bad driving facts, officer’s observations, Tiger’s statements (including his post-arrest statement), the field sobriety exercises, the Drug Recognition Expert’s (DRE) Evaluation, the urine sample, and a toxicologist’s interpretation of the urine sample results.
How the Defense can Prevent the State from getting there:
- Officer’s observation: Tiger was confused.
Of course he was. He had just woken up. Greeted by Jupiter’s finest. If someone is found sleeping in their car, you can bet they were at the very least tired. A recent MIT study compared impairment vs. sleep deprivation and found if one sleeps only 6 hours it is comparable to 2-3 beers; 4 hours is comparable to 5-6 beers; 2 hours is comparable to 7-8 beers, and no sleep is the same as drinking 10-11 beers. We know it was early in the morning, but we don’t know what Tiger had done that day or how long he had been up. Under the law and under the presumption of innocence we are required to presume exhaustion and sleep deprivation were the cause of Tiger’s demeanor unless the State proves otherwise beyond a reasonable doubt
We also know there was damage to Tiger’s car. Both of Tiger’s driver side tires were flat, with damage to the rims, front bumper, rear bumper and rear tail light. There was an accident of some kind. The severity we don’t quite know, nor do we know how and where the damage occurred or how the accident impacted Tiger’s mental and physical faculties (although we get a good idea from the video). Symptoms of intoxication mirror symptoms associated with head injuries and concussion. It is why officers are taught as part of their investigation to ask about any possible head injuries. Head injuries cause slow and slurred speech and head injuries cause confusion. We can lawfully presume the cause of Tiger’s demeanor was the result of a head injury.
- Tiger’s statement he took several prescriptions.
“Soloxex” is likely a misspelling of soloxine (levothyroxine sodium), a drug meant to treat dogs with hypothyroidism, a condition in which the thyroid doesn’t produce enough thyroid hormone. In January of 2016 the FDA issued a warning letter to the drug’s manufacturer, Virbac, for producing the drug without FDA approval. The dog pill would unlikely cause impairment.
“Torix” is likely a misspelling of Etorix or Turox. This drug is used to treat joint pain and is currently not approved in the United States. Side effects are limited to rare instances of skin rashes. Again, this pill alone would unlikely cause impairment.
Of the drugs listed, “Vicodin” could cause signs of impairment, including drowsiness and confusion, especially at high doses. Vicodin, a brand name for hydrocodone, is an opioid painkiller and a schedule II substance under the Controlled Substance Act. However, a statement that you are prescribed Vicodin is not enough. To prove their case beyond a reasonable doubt the State needs more. The urine tests could help, if a quantitative analysis (how much) is accompanied with it. However, urine tests are often presumptive indicating only if a drug is present. Additionally, urine tests must be gathered, collected, and stored properly or risk contamination. Another issue with drugs, unlike alcohol, is they cannot be extrapolated back to the time of driving. This is because of the way they are processed through the body, referred to as first-order kinetics. A fancy way of saying from person-to-person we don’t really know how long it will take the drugs to absorb, distribute, metabolize, and exit. All of this makes drug impairment at the time of driving difficult to prove beyond a reasonable doubt.
- Was there an odor of alcohol or not?
The odor of alcohol is a classic sign of intoxication. Typically you will see words such as “strong odor of alcohol”, despite the fact that alcohol doesn’t have an odor and officers are unable to tell how much someone had to drink based on that odor. After going back to write his report, Officer Fandrey notes “none” for odor. However, on video released, we here the following exchange:
- Officer Fandrey: Have you had anything to drink?
- TW: No.
- Officer Fandrey: Are you sure about that . . . because there is some odor coming from you.
We know later Tiger submits to a breath alcohol test that reads 0.00.
So did Tiger have an odor of alcohol or not? Did Officer Fandrey conveniently change his opinion after seeing the breath alcohol results? Jupiter PD for the win.
- The Standardized Field Sobriety Tests:
Tiger should have never been given these tests.
Officers are trained to administer field sobriety tests in accordance with procedures and standards set out by the National Highway Traffic and Safety Administration (NHTSA). The three recognized and standardized tests are the Horizontal Gaze Nystagmus (the pen or eye test), the Walk & Turn (walk the line) and the One Leg Stand (stand on one foot). While the tests are used as indicators of impairment, they are really nothing more than glorified coordination exercises designed for you to fail. Both sober and impaired persons equally struggle with the exercises. That is why scientific studies, in charge of developing the exercises, resulted in a high % of false arrests. Additionally, these tests have specific procedures and protocol that need to be followed, though they rarely are. The NHTSA manual itself states, “If any one of the Standardized Field Sobriety Elements is changed, the validity is compromised.”
Tiger should have never been given these tests. Officers are taught to screen subjects prior to administering the tests. Of importance is whether a person has any back, leg, or ear problems. In his report, Officer Fandrey says,
- “I asked Woods if he had any injuries that would stop him from standing on one foot or walking in a straight line to which he replied no . . . “
How about 10+ surgeries since 1994, including 4 back surgeries, two ACL surgeries and a ruptured Achilles? His most recent back surgery was just last month. You just asked someone, fresh off back surgery, to walk a line heel-to-toe? Jupiter PD for the win again!
- Linking drugs to impairment.
We are still waiting on the urine analysis, but tucked away somewhere is the DRE evaluation. Urine analysis coupled with DRE evaluations are used to bolster the State’s case that drugs were the cause of impairment. It is a 12 step program backed by NHTSA and others that allow an officer to give an “expert” opinion that not only were drugs the cause of impairment but what kind of drug. DRE programs came about in the 1970s after officers arrested people for intoxication, noting things like odor of alcohol, but then reading 0.00 across breath testing machines (sound familiar). The police reports say an Officer Borrows completed the DRE evaluation, but it is MIA. All we’ve seen thus far are tests associated with arresting someone for an alcohol-related offense.
With more information being given daily, we’ll have to see how this plays out. For now, if you consider yourself law abiding, Tiger deserves we presume him innocent.
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.