Hi,

I would like thoughts on how to proceed and what your experiences have been. Case coming up where the def is pulled over for speeding (56-45), officer smells alc, gets out to do the test. Only the HGN is completed when he is informed that it is optional (as a response to one of his questions). 6/6 on HGN. Def admits to "small amount of drinking some hours ago".

However - None of the other test, including breath and blood were performed (refusal). No erratic driving is captured either on film or in the officers view. In the videos, particularly at the station, there are no signs for the jury to see of those normally pointed out for intoxication (speech, leaning, swaying, etc)...particularly the station, he is quit straight, motionless, standing still, normal speech, etc.

I understand roughly how it will go on the HGN, they will of course point to the other causes (smoker - nicotine) and blah, blah. However, typically you might focus on the other attributes in the video, but I am not sure this plays in our favor. I will have is basically the officer opinion (HGN, red eyes, glassy eyes, smell) and refusal.

How to proceed? What success or failures have you had in similar circumstances? What are the huge challenges I should prepare for from defense?

Obviously, these are tough to win, but it can be done.

One tactic I've used on HGN-alone cases, especially if my arresting officer is fairly young and inexperienced, is to call another more seasoned officer from another police agency as an expert on HGN.

First, my arresting officer testifies as they would normally. I let the defense lawyer do all of their normal bs (BTW, nicotine does NOT cause HGN). Then, I'll bring in one of the real superstar DWI officers from our county (or possibly another county)to testify generally about what HGN is, how it works, and, most importantly, why it is an indicator of intoxication. At some point, I'll also put in Dr. Citek's HGN video that you can get from Brent Robbins (I think it might also be on the new DWI Resource tab above) so I can SHOW the jury what HGN looks like. This is always more effective than simply having the witness talk about it.

As I said earlier, I always try to get my expert from a police agency other than the arresting agency in order to further show the jury that HGN is widely used and just to enhance the credibility of that evidence. More than anything, I like doing this because a juries learn through repitition and the more times they hear how reliable HGN is the better.

Also, you need to HAMMER on the refusal and couch it terms of the choice the Defendant made. How important is the ability to drive in our daily lives??? Well, this Defendant CONSCIOUSLY CHOSE to lose that ablity for six months rather than show you jurors what his alcohol concentration is. Why on Earth would he do that unless he was fairly certain that the results were going to be even worse for him than simply losing his license?

One caveat of the above post...

If you're going to bring in another expert on HGN, you must first make sure that your arresting officer did it right. Otherwise, you'll get your two witnesses disagreeing with one another on the stand and that tends to be unpleasant.

I would agree with RCC. In addition, you need to prep your arresting officer over and over on the ONLY causes of HGN and the various other forms of Nystagmus and why they don't apply. You really need to make the officer look as credible as possible in front of the jury. They will look to his professionalism and experience when trying to equate a minute eye movement with a criminal conviction. Continuing on RCC's logic, why did he refuse the other tests? Because he found out he could. Talk about this in voir dire. Does a robbery suspect get to refuse a photo line-up? Does a murder suspect get to refuse to give fingerprints? Why do DWI suspects get to limit your evidence?

There is a lot of jury nullification in DWI cases, so when doing voir dire, I think it's helpful to start off reminding the panel that they have taken an oath to answer all questions truthfully, and if they end up on the jury, they will take a further oath to render a true verdict. I ask: who considers an oath to be a mere formality? Who considers an oath to be a promise to God to tell the truth? I point out that they may make an excellent juror in a murder case, or a burglary case, but maybe not in a DWI case.

Then I would ask the panel what their definition of intoxication is. If no one answers quickly, call on someone. It will probably be something like, "stumbling around, slurred speech, slow responding, etc."

Point out that everyone has their own definition of intoxication in their mind's eye, but to serve on a DWI jury, you must be willing to use not your personal definition of intox., but the law's. Then give the legal definition of intoxication. Explain: it is much stricter than most people's definition of intoxication. If you are not sober, you are intoxicated. You can be a long ways from drunk and be legally intoxicated. You do not have to be stumbling around. You do not have to have any obvious signs of intoxication, and be legally intoxicated, because all you need to lose is the mental ability. Example: If you can normally recite the Gettysburg Address without a hitch, but after you've been drinking you stumble just a little, or if you can normally say your ABCs without thinking, but now you have to think real hard to do them, you are legally intoxicated.

Tell them: everyone is against drunk driving. But a lot of people think the legislature went too far in defining intoxication this strictly. Who here feels that the legal definition is too strict?

Then ask the reverse: raise your hand if you would vote to convict, if the state proves each element, and the evid. is that the def. had a slight loss of only his mental faculties due to drinking, but was clearly not physically effected by the alcohol? Get a clear commitment on this, and anyone who can't do that, praise them for their honesty, and later challenge them for cause for not being able to follow the law.

Point out to the panel that driving is mostly a mental exercise. Most people can drive safely from point A to point B while intoxicated, so long as there is nothing unexpected that happens along the route: a child darts out into the road, someone cuts him off, an accident occurs ahead of him, before emergency vehicles can get there, etc. etc. The slightly intoxicated driver just can't cope at that point.

Also in voir dire, ask the panel: who here has ever had a cop stop you for a traffic violation: speeding, a headlight out, a taillight out, fail to signal, etc? Everyone will raise their hand. Then ask: who here has ever had a police officer check you out for signs of intoxication during a traffic stop? Probably no hands will go up. Then tell them: You have a news flash. All of y'all were checked out for signs of intoxication when ever you were stopped by the police. The police routinely check every driver they stop for DWI. Most show no signs and and are sent on their way without the driver knowing that the officer was observing him for signs of intoxication.

The point is that police check for intox. as part of their job, and only go to the FSTs, etc. when they have reason to believe the person is intoxicated.

Point out that the law does not give us a right to drive--it is a privilege. One of the conditions of driving on a public road is that you may not drive while intoxicated. If a cop has reason to believe you may be intoxicated, he has authority to detain you, and ask you to submit to an Intoxilyzer test to see what your BAC is. You do NOT have a legal right to refuse. If you do refuse, you will lose your right to drive for at least 180 days, and the jury at your DWI trial can consider your refusal as evidence of guilt in a DWI trial.

Ask them: who disagrees with this? Who agrees with this law?

Point out: obviously the police cannot physically force someone to do the FSTs, or to give a breath sample to an Intoxilyzer machine. Who here feels that the law should be: if you refuse to give a breath test, and refuse to do the FSTs, by law there should not be enough evidence to convict, and the driver should be let go? Or, if you refuse all cooperation on FSTs and the breathtest, only those who show gross motor skill degradation--people who are not just slightly intoxicated, but are clearly drunk--should be convicted of DWI?

Ask them: suppose, on your way home from the courthouse you got stopped and some cop thought you were intoxicated, and arrested you for DWI, who would WANT to take the Intoxilyzer test? Who would not?

The point you are leading to in your trial is this: anyone stopped and checked out for DWI who refuses to do the FSTs and especially the Intoxilyzer, has in effect admitted guilt to DWI. You really need to hammer that common sense fact to the jury.

Also ask the panel: who here has seen someone intoxicated before? Do you think it takes years of post graduate study to determine if someone is intoxicated, or can just about anyone who has seen intoxicated people before tell if someone is intoxicated?

Then ask: do you think the more you have to deal with intoxicated people, the better your ability to determine intox. is?

Do you think people who have to deal with intoxicated people on a regular basis, like bartenders and cops, get to be more accurate in determining intoxication than people who rarely see intoxication?

When you put your officer on the stand, go into a lot of detail about his experience dealing with intoxicated people. If he worked in the jail he was dealing with them all the time, and as a cop he will see them very frequently. Go into his training, etc. as well. Ask him: has your ability to determine intox. increased since you went to work in the jail or as a cop? Make him out to be an expert in intoxication, which, in fact, he probably is if he's been on the force very long.

In your closing, remind them of their oath. They are not free to "cut some slack" to the def. They are bound by their promise to God Almighty to render a true verdict. Then go thru the evid.: The officer, who routinely deals with intox. people determined he was intoxicated. That right there is enough evidence to convict!

But wait! There is more! He did the HGN, and D had all 6 clues. That is enough right there to convict!

But wait! There is more! He refused to do any further FSTs! That is an admission: he knew he would fail them; that is the only logical reason anyone would refuse to do the FSTs in that situation. That is more than enough to convict!

But wait! There is more! He was offered an Intoxilyzer test. A scientific instrument would determine his BAC, and the officer's opinion wouldn't have anything to do with it--the perfect time to clear this up--but he refused! Not only that, but he refused, knowing his D/L would be suspended for 6 mos.! That, right there, is enough evidence alone, to establish he was intoxicated!

Hammer them with the common sense of the situation, and demand they render a true verdict as they promised you and God they would do.

Good luck.

[This message was edited by Terry Breen on 05-12-09 at .]

quote:

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raise your hand if you would vote to convict, if the state proves each element, and the evid. is that the def. had a slight loss of only his mental faculties due to drinking, but was clearly not physically effected by the alcohol? Get a clear commitment on this

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I'm thinking this is an improper commitment question but I have to admit that I'm still confused after reading this: WINGO v. STATE Tex. Cr. App. 2006

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Also in voir dire, ask the panel: who here has ever had a cop stop you for a traffic violation: speeding, a headlight out, a taillight out, fail to signal, etc? Everyone will raise their hand. Then ask: who here has ever had a police officer check you out for signs of intoxication during a traffic stop? Probably no hands will go up. Then tell them: You have a news flash. All of y'all were checked out for signs of intoxication when ever you were stopped by the police. The police routinely check every driver they stop for DWI. Most show no signs and and are sent on their way without the driver knowing that the officer was observing him for signs of intoxication.

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Dude - I am so dumb for never having thought of this angle before.

Alex:

The jury must find the def. was intoxicated if he lost the normal use of his mental OR physical faculties due to ingesting alcohol. The question asks if they would convict if the only thing effected was the def.'s mental faculties, assuming all the other elements were proven beyond a reasonable doubt. The state has a right to have jurors who will follow the law and convict even if evidence of intoxication showed that only his mental faculties were effected. Thus it is a proper commitment question. IMHO.

I understand about jurors that will follow the law but I don't get how that squares with this:

quote:

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"An otherwise proper question is impermissible, however, if it attempts to commit the juror to a particular verdict based on particular facts."

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Every time I've finally got the commitment question rules straight in my head along comes another scenario and I'm back to being confused.

Come on Newell...you're the "committment question" guru...what say you???

Alex,

You can't get the panel to commit to particular facts that's true. You can't say that if a car is speeding and weaving and you see red bloodshot, glassy eyes, and hear testimony about HGN only, will you promise to convict.

But the Standefer case and its progeny do contemplate and allow commitment to the law.

By asking the panel to assume that, whatever facts they hear, they believe the elements have been proven beyond a reasonable doubt, the question becomes proper.

It does not ask them to commit to particular facts but asks them to commit to the law, which is a legally appropriate and smart question as I understand the commitment question cases.

By asking them only about mental faculties the question highlights the disjunctive definition of intoxication.

Becuase that IS the law. If the jury believes beyond a reasonable doubt the defendant lost the normal use of mental faculties only OR physical faculties only OR that his BAC was over 0.08 then he is intoxicated. If they believe that BRD then they believe any one of those things then intoxication is proven. If they also believe all of the other elements (which are almost never in dispute beyond perhaps operating), then they belive all elements of the crime BRD. If they won't convict at that point, then they're blatantly disregarding the law.

Thus, the question only commits the panel to follow the law. Hence it is a proper question.

You can't commit the jury to voting based on a particular set of FACTS. "Would you convict the defendant if he failed the FSTs?" is one example. "Could you still give the defendant probation even if he beats his wife?" is another. The law doesn't say that the jury has to convict someone for failing FSTs, or give probation to a wife-beater. Therefore, you can't challenge them for cause just because they won't follow your fact pattern, so it's not an improper commitment question.

You CAN commit the jury to following the law. "Could you convict the defendant for rape if we prove the elements to you, even if the victim was his spouse?" is fine, because the law says that it's still rape even if it's your own spouse. "Can you convict the defendant if we prove he lost the normal use of his mental faculties, even if he was fine physically?" is also fine, because the law says that loss of mental OR physical faculties is all you need.


EDIT: I see Prezas beat me to it. Good explanation.

Here is the first half of the original question:
"[Would you] vote to convict, if the state proves each element, and the evid. is that the def. had a slight loss of only his mental faculties due to drinking?"

I think this part of the question is proper because it is asking if they can follow the law.

The second half of the compound question... I'm not sure:
"[Could you still convict if the defendant was] clearly not physically effected by the alcohol?"

To me this seems to ask for a commitment to a particular verdict based on particular facts.

Q: Is it possible to have a compound question where the first portion of the question is proper and the second portion is not?

The second half of the question is fine, because the law says that a person is intoxicated if they're ONLY mentally but not physically impaired. You're just asking them if they can follow that law. It's just like asking people if they can convict on impairment period even if we don't have evidence of over 0.08.

So yes, you CAN have a compound question that is part okay and part not okay. This just isn't one of them.

quote:

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Originally posted by AndreaW:
EDIT: I see Prezas beat me to it. Good explanation.

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Yeah, for a young felony prosecutor, he's wickedly bright. Just don't ask him for a short answer.

There's nothing wrong with being young, Phil. It happens to the best of us.

So here's a conundrum:

Does the mere fact that I take some small pleasure in being called young mean that I lose my young card and become old?

Or is that kind of hubris and vanity prone only to the young?

Or is it an odd sort of mix between Heisenberg and Schrodinger where the mere fact that I asked the question changes the answer that would have been given had I never asked?

Prezas, the answer to that is obvious.

42.

Go now and be at peace.

Prezas said: "Or is it an odd sort of mix between Heisenberg and Schrodinger where the mere fact that I asked the question changes the answer that would have been given had I never asked?"

Prezas -- the first rule about the user forum, is we don't talk about physics in the user forum!

Could you vote to convict if the evidence shows beyond a reasonable doubt that a person has lost the normal use of mental faculties but the evidence also shows beyond a reasonable doubt that they have NOT lost normal use of their physical faculties?

Edit:
So the above compound question would this be OK because, although it involves some specific facts, you are asking them if they can follow the law.

[This message was edited by AlexLayman on 05-13-09 at .]