I have a DWI case coming to trial in a couple of weeks and in this case the arresting officer has pulled over the Defendant three times prior and on all occassions the Defendant had been drinking but passed the field sobriety tests (I'm not sure if the officer performed all tests or just the HGN) so the officer allowed the Defendant to leave. This particular time the Defendant failed and was arrested. Now I would like to use the previous times for several reasons. First, it helps the officer's credibility, he isn't just arresting anyone who has been drinking and driving. Second, the experience with the Defendant will show this officer has seen the Defendant perform the SFSTs before and pass, this time he failed.

This would be a huge help to my case since the Defendant looks very good on video. My argument would be that, as the defense attorney will undoubtedly remind the jury, it is not against the law the drink and drive if you are not intoxicated, it is not a crime or even a bad act so I'm not sure how he would keep it out. I think it is clearly relevant since this officer has had experience with this defendant drinking before he can testify how the defendant performed the prior times he was given the SFSTs. I understand the traffic stops themselves may be crimes or bad acts but I wouldn't really even have to get into them.

Any thoughts or case law would be appreciated.

Good question. Perhaps the judge would be willing to admit the testimony with a limiting instruction to the jury?

Even if your judge won't let it in initially, the INSTANT the defense starts crossing your cop on SFSTs and stuff like natural nystagmus, etc. the door is open to the prior contacts.

I agree with RCC. I think it might be better to wait for the defense to open the door. It would be hard asking the officer questions here that wouldn't open the door in this case, and then your judge would be much less concerned about bringing it in since the defense brought it up.

If defendant looks "very good" on tape, how did he fail the SFSTs? what I mean is, the jury is gonna believe their eyes. prior contact evidence might make it look like a personal vendetta-like the officer is fed up with this guy getting away. No reason not to try, mind you. Just sayin, tread lightly.

Remember that suspects don't "pass" or "fail" SFSTs. Their performance either indicates that they are INTOXICATED or they're not...

I agree with what others are saying- it may be too tempting for the defense to open the door to you to get into this on redirect. Remember that what we're looking for in a refusal case is the loss of "normal use" of faculties. The officers prior experience with this subject at times he determined that the defendant was not intoxicated gives him a baseline for what this defendant's "normal" is.

If the video looks good, then it's all the more reason that the officers prior experience is relevant- he can testify as to how this particular SFST differed from previous encounters- and thus what evidence the defendant lost his normal use.

quote:

---

Originally posted by jem:
If defendant looks "very good" on tape, how did he fail the SFSTs? what I mean is, the jury is gonna believe their eyes. prior contact evidence might make it look like a personal vendetta-like the officer is fed up with this guy getting away. No reason not to try, mind you. Just sayin, tread lightly.

---

This is exactly what came to my mind. Agreed that it should be relevant and should be admissible. I would think your ability to prove the defendant's "normal" (if you can) should come in regardless of what the defense attorney does. It goes directly to proving loss of faculties. But I would hope that the DWI arrest shows significant differences that can be pointed out. Nit picking very small differences might just backfire.

Ryan Hill
Assistant County Attorney
Hood County, Tx