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.