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Recently, according to the Texas Tribune, the wife of a Republican gubernatorial candidate was arrested on suspicion of driving while intoxicated (DWI) and spent the night in a Dallas jail as a result. The woman had her three-year-old grandson with her at the time. This is despite the fact that no trace of drugs and/or alcohol was found in her system. This mega mix-up is one for the books, and if it could happen to her, it could happen to you. A charge of DWI does not mean you are guilty of DWI, so keep this in mind if the police pull you over for suspicion of DWI. You have legal rights – and they are well worth protecting.
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The Backstory
The 61-year-old woman had her 3-month-old grandson in the car with her, and she was driving home after dinner with friends at a restaurant chain when she was pulled over by the police. Apparently, the arresting officer witnessed her swerve onto the road’s shoulder and used this as probable cause to stop her. The woman proceeded to participate in a field sobriety test, and the arrest affidavit (that the woman’s attorney shared with the Texas Tribune) indicated that – in portions of this testing – she demonstrated signs of intoxication (her attorney has attributed this outcome to a prior brain aneurysm).
Additionally, the breathalyzer test (the reliability of which is often questioned) that was administered during the stop was inconclusive. The woman’s husband (the gubernatorial candidate) corroborated the woman’s story – that she had only had lemonade and water to drink with dinner, which was backed up by the restaurant receipt. The toxicology report performed on the woman ultimately came back clean for both alcohol and drugs, and in the end, the District Attorney’s office rejected the case (based on the toxicology reports). This highlights exactly how easy it is to face charges of DWI and exactly why you need an experienced criminal defense attorney in your corner if you are facing a DWI charge.
With a Baby
What makes this case especially difficult is that the woman had a small baby with her. The baby was kept on the side of the road with officers while the woman engaged in the field sobriety tests, and the officers kept the child until his parents arrived to take him home (while the woman was taken to jail). Generally, however, the police are required to call in Child Protective Services when drivers are arrested on suspicion of DWI with a child under the age of 15 years old in the vehicle. The bottom line is that being stopped for suspicion of DWI is serious, but if you have a child with you, it is even more serious – making the ordeal that much more arduous.
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Field Sobriety Tests
While the breathalyzer tests given at the side of the road are notoriously iffy, field sobriety tests may be even more so. When you obtain a driver’s license, it implies your consent to take a breathalyzer test if you are suspected of being impaired, but the same is not true of field sobriety tests. This being said, however, refusing to take a field sobriety test is not without its own consequences. The police officer who requests that you do so can translate your refusal to take the tests as probable cause for arresting you. Further, the court can read your refusal to submit to the field sobriety tests as evidence that supports the charge of intoxication behind the wheel.
Field sobriety tests come in three basic categories.
The Horizontal Gaze Nystagmus Test
The horizontal gaze nystagmus test requires the suspect to follow an object – like a small flashlight or a pen – with his or her eyes while the officer observes. The officer is attempting to gauge if the suspect has a difficult time following the object and/or if his or her eyes get jerky in the process.
The Walk-and-Turn Test
The walk-and-turn test works pretty much just like it sounds. The suspect is asked to take nine steps forward – walking heel to toe – along a straight line and then to pivot and walk back the same way. The officer observes for a shaky turn, for a loss of balance, for too few or too many steps, or for any other inconsistencies.
The One-Leg Stand Test
The one-leg stand test involves the suspect standing on one foot with the other about six inches off the ground while counting. After about 30 seconds, the officer instructs the suspect to put his or her foot down. During those 30 seconds, the officer observes for signs of impairment, and such signs can include:
Swaying while balancing on one foot
Using one’s arms to balance
Tacking mini hops to maintain one’s balance
Putting one’s foot down
Field sobriety tests are considered more accurate at determining impairment when they are implemented in multiples (rather than relying on just one).
Field Sobriety Tests: A Lot to Unpack
While you can find some percentages out there that support the effectiveness of field sobriety tests, their reliability is only as good as the instructions provided to the driver, the officer’s demonstration to the driver, the conditions at hand, and the driver’s level of anxiety (which can be through the roof). When all the elements are in perfect working order – and the officer provides clear instructions, demonstrates how the test works clearly himself or herself, and takes any extenuating circumstances into consideration, the tests can be somewhat accurate, but this is a tall order.
Let’s Take a Closer Look
Let’s take a closer look at those field sobriety tests.
Shifty Eyes
That horizontal gaze nystagmus test is looking for involuntary jerking of the eyes that can be brought on by alcohol consumption, but it can also be caused by many other things, including stress, caffeine, and wind.
The Divided Attention Field Sobriety Test
The walk and turn test is intended to divide and conquer. The idea is that a person who is impaired is not able to divide his or her attention to the degree necessary to perform this test accurately, but when you add up all the requirements, the more salient point might be – can anyone (sober or impaired) perform this test accurately. Consider the instructions carefully:
Walk the line provided to you for nine heel-to-toe steps (while counting the steps aloud and not breaking your stride)
Keep your arms down at your sides
Look at your feet
Turn in the manner specified
Return the same way
Give this a try when you are as sober as a judge, and you might be surprised by exactly how difficult it is (be prepared to lose your balance). Then imagine doing it on the side of the road while passersby look on and the police hold a steady gaze. Basically, the only way to ace this test the first time around is to have a lot of practice under your belt, and that is not the test’s intention.
One More Try at Divided Attention
The one-leg stand is also a divided attention test because balance is an attribute that can range considerably (think about the difficulty you have doing a simple yoga move and the way gymnasts fly across balance beams). The instructions for this test are fairly basic, but once they have been fired at you by a stern police officer on the side of the road, they can leave you reeling (before the test even begins). Give these a try:
Raise one of your feet about six inches off the ground, but be sure to keep the bottom of your foot parallel to the ground
Keep your eyes on your foot, keep both your legs straight, and keep your arms at your sides
While you stand in this position, begin counting from one-thousand-one to one-thousand-two – and so on – until the officer stops you after about 30 seconds
This is about as difficult as it sounds. In fact, it feels completely unnatural, and you are unlikely to get it right with a first go unless you have put some time into practicing the maneuver.
While these field sobriety tests tout accuracy rates that range from 60 to 80-ish percent, this means that, under ideal conditions (which are undoubtedly rare), they are still incorrect far too much of the time.
The Breathalyzer
Every year, according to The New York Times, more than a million people across the country are arrested under suspicion of drunk driving, and most of the time, the deal is sealed by the breathalyzer test (a test in which the driver blows into a handheld device) that is administered at the scene, and that is intended to give a reading related to the driver’s blood alcohol concentration (BAC). These handheld devices are one of the most widely used forensic tools in law enforcement, and the readings generated generally play a pivotal role in DWI convictions, which lead to cascading fines and penalties, but motorists face license suspension if they refuse to take the test.
The Study
The New York Times’ report was based on months of investigations into discrepancies with the breathalyzer’s technology that, nonetheless, is used to get DWI convictions across the country. In fact, the number of breath tests thrown out by judges in over a dozen states has reached the tens of thousands. In the meantime, the breathalyzer is intended to give accurate readings to the .08 percentage in order to demonstrate that the driver is over the legal limit, which holds steady at .08 percent BAC in every state but Utah (which has reduced its legal limit to .05 percent BAC).
The Study’s Takeaways
There are three primary takeaways from The New York Times reporting.
Inaccuracy
The Times finds that, despite the fact that breathalyzer machines are the primary tool employed to make millions of drunk driving arrests each year, the technology backing these arrests up can be unreliable. Across the nation, more than 50,000 tests have been ditched by courts that cite problems with the specific machines used, with errors made by the police who use them, and with mistakes made by the laboratories that are responsible for ensuring – via setup and maintenance – that the devices work properly, to begin with.
Secrecy
To make things more difficult, the companies that make breathalyzer machines identify the technology that goes into making them proprietary – or a trade secret – which, in turn, causes them to double down against any investigations into the devices by anyone who comes snooping around, such as criminal defense lawyers and independent investigators. Further, there is very little oversight when it comes to the police departments and state labs that control these programs, which helps to ensure that even when there are widespread issues, they rarely see the light of day.
Serious Consequences
An example of how seriously consequential the problems with breathalyzer machines can be is the State of Massachusetts, which recently had to give every breath test performed in the last eight years the old heave-ho. This means that over 28,000 drivers had been convicted based on faulty technology and that other drivers who may have been over the limit when originally tested had skated on charges that likely applied. Further, there are 13,000 drivers in the State of New Jersey who can seek a retrial due to convictions made with flawed breath tests.
Speak with an Experienced Killeen Criminal Defense Lawyer Today
A DWI conviction can seriously disrupt your life. Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a distinguished criminal defense lawyer who has a wealth of impressive experience successfully defending the rights of clients like you – while in focused pursuit of favorable case resolutions. We are here for you, too, so please do not wait to contact us online or call us at 254-501-4040 today for more information about how we can help.
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