I had a trial last month where the defendant only did HGN and refused all other tests. I had no bad driving facts and the defendant looked good on tape. (Walked straight and talked clear) Believing I had very little to go on, I tried the case focused on practicing with my HGN expert. Halfway through trial with 1 fact witness (the officer) & 1 expert, I realized I could paint a picture for the jury with everything he refused to do. In closing I wrote "LESS THAN NORMAL" at the top of my board and explained that anything less than that proves intoxication under the law. Then I pointed out and listed on the board all the refusals to the jury, and with each one asked the retorical question, "Why did he refuse?" , to which I quickly responded "because he was drunk and he knew it"... or some variation thereof. I also listed other facts obvious to us but not juries... DIC info, dancing clothes, odor of alcohol when defendant says had nothing to drink, if he had nothing then why not blow, changed route of travel when officer pulled marked unit behind him before the stop, and the best one... like your grandma told ya, ain't nothing good happens after midnight. The jury agreed!
If your purpose in this question was to get prosecutor advice to assist in later prosecution, I am probably not the best prosecutor to ask for advice. I am a newby and still learning everyday. I will tell you that the more you get a defendant to talk on the roadside while on video and while trying to lie himself out of an arrest, the more we will have to use against them later. Always be nice and honest while on video. The jury will want the good guys to win!
Posts: 8 | Location: Waxahachie, TX, USA | Registered: September 28, 2004
We prosecute "total refusals" all the time in my County. Our success in large part depends on how good the investigation was, how aggravated the basis for the stop was, how the Defendant looks and sounds on the video, how well the officer justifies his reason for making the arrest...
Richard
Posts: 261 | Location: Fort Worth, Texas | Registered: February 21, 2001
Since the question was posed by an officer let me make suggestions there. Don't let the defendant stop the investigation. Explain and demonstrate each SFST and make the suspect refuse all three. Ask questions. Turn the camera in the car around on the trip to jail. Search the car and the defendant incident to arrest. Did he have bar reciepts. Ask the defendant to move around. Observe them at jail booking where the talk a considerable amount, and must remember and relate personal info.
My observation is that once that defendant says "no blow, no test" the officer responds "well heck I just turned deaf and blind". If that is whats happening then the prosecutor has nothing to prosecute. Give them a full investigation.
Finally, it is a pain, but if you want the case prosecuted (and we all should) go the extra mile and get a blood warrant.
The worst thing we can do is allow the defendant to call off an investigation and prosecution. It takes both officers and prosecutors to prevent this.
Just my opinion I could be wrong.
Posts: 293 | Location: Austin, TX, US | Registered: September 12, 2002
Before I became a prosecutor I was a cop and I had two cases where the defendants refused SFSTs. The first one was a DWI second. I turned the camera around on him when I put him in the back seat. The jury could tell he was hammered. Especially when he fell asleep half way to the jail.
On the second case, the guy had 9 priors. (This was one of those cases back when they couldn't be used for enhancement because it had been over 10 years since he last convinction. Of course, he'd been in prison 10 years.) Anyway, the guy refused everything. Down in the book in room, I had him stand in front of a camera (which he didn't notice) as I wrote my report. That way it at least picked up his heavy sway from left to right and back and forth. Like most drunks he talked non-stop. At one point, he said "I may be intoxicated, but y'all don't have to treat me this way." He actually used the word intoxicated. It never went to trial because it was enough to revoke his parole.
quote:Originally posted by Clay A.: Since the question was posed by an officer let me make suggestions there. Don't let the defendant stop the investigation. Explain and demonstrate each SFST and make the suspect refuse all three. Ask questions. Turn the camera in the car around on the trip to jail. Search the car and the defendant incident to arrest. Did he have bar reciepts. Ask the defendant to move around. Observe them at jail booking where the talk a considerable amount, and must remember and relate personal info.
My observation is that once that defendant says "no blow, no test" the officer responds "well heck I just turned deaf and blind". If that is whats happening then the prosecutor has nothing to prosecute. Give them a full investigation.
Finally, it is a pain, but if you want the case prosecuted (and we all should) go the extra mile and get a blood warrant.
The worst thing we can do is allow the defendant to call off an investigation and prosecution. It takes both officers and prosecutors to prevent this.
Just my opinion I could be wrong.
Excellent advice Clay. I'm with Richard, I still prosecute these cases and have had good success with them. I'm also encouraging officers to use a SW for a blood draw.
