I have a DWI trial coming up in 2 weeks. On my video tape the defendant initially refuses to do the HGN but then agrees to let the officer look at his eyes. But, he refuses to do the "walk and turn" and "one leg stand". He also refuses to blow on the Intox 5000.

So...I have a case where the officer smells alcohol and sees all 6 clues on HGN. The officer arrested him for DWI. Our jurys in DWI's are very pro-defense. It is near impossible to convict a DWI here.

Any ideas on how to win this case? Any help would be appreciated.

Thanks

Plea Bargaining.

Don't sell completely out, but plea bargain if you can.

It's not impossible down there. Give me a call. We'll talk about who's trying your case, and see if you and I can come up with a strategy based on which defense attorney it is. The credibility of your witness will matter quite a bit.

Remember, the refusal to test is admissible. In fact, I believe there is case law that allows a conviction on the refusal alone.

Dig through Richard Alpert's TDCAA book - DWI Investigation and Prosecution. (Page 21+) Kelton has a copy on his shelves in front of his desk. Also ask Chad for his DWI voir dire file. He's got some good stuff in there.

Obviously if all you have is an HGN, you're going to have to know the arguments that circumnavigate nystagmus, what can cause it, and what makes "horizontal gaze nystagmus" unique. Know the difference between the 77% accurate survey from 30 years ago, and the 88% accurate survey that's far more recent.

www.ndaa-apri.org/apri/programs/traffic/hgn.html

I've got a six page handout from the baby prosecutor's school in 2k2 that's incredibly useful. Ask Belinda for a copy. If she doesn't have one, talk to the guys at your DPS. Trooper Bradshaw should still have his.

I miss Hood County. Was a fun place to work.

(940) 668-5466

You have to beat him relentlessly with his refusal to perform any tests or to give a breath sample. Hopefully you have some driving facts that suggest intoxication.

Ask veniremen during jury selection how they would enforce the DWI laws when suspects choose not to perform FST's.

That's not such a bad situation. You get to argue away, unrestrained by disputed facts.

If it goes to trial, you may want to try using the DPS training video on HGN. It shows a comparison of a person's eyes with no alcohol and a persons eyes with .08 BAC. I believe it could be used during your officer's testimony to help explain what he saw. DPS should be able to provide you with a copy.

Back when the dinosaurs roamed free and I was prosecuting these cases, about 1/3 were total refusals. Pound on that refusal...who knows better than the D whether he was intoxicated?

Get the book-in photo and the car inventory. Maybe he looks wasted and has beer in the car. Take pictures of the scene if the ground is level and smooth.

Hit the bad driving, if it exists.

VOIR DIRE: What do you do w/ somebody who smells like alcohol, fails one SFST, and then refuses the other two? [Uhh, arrest him and charge him w/ DWI.]

Also, did D make contemporaneous statements about leg injuries? If not, and if that's the defense at trial, why didn't he say anything about it then?

Get officer to stress how easy the SFST are for a sober person to do.

ARGUMENT: Y'all wanna send the message that all you have to do to get out of DWI is refuse everything? Think that's gonna make the streets safer?