The Matlock Blog

The Typical Fort Worth/ Tarrant County DWI

Driving While Intoxicated is perhaps the most unique criminal charge in Texas, and perhaps the most prosecuted. A DWI is essentially an opinion crime; that is, it is the opinion of the officer whether a person is charged with DWI,and the jury as to whether to convict.

Contrary to popular belief, the police cannot stop a person unless they have a justified reason for doing so. Although that sounds like a benefit to people, in reality, the police can often justify virtually any stop of a citizen. In a DWI case, the most often cited reasons for the stop are weaving between the lanes of traffic, driving too fast (or too slow), and failing to signal. Once these infractions occur, the office may stop a citizen and begin his investigation into a possible DWI.

Once the officer has stopped a person, they will typically ask for the person's license and insurance information. Although they are certainly seeking to make sure the person is legally driving, they are also on the look out for what are referred to as "clues", or indications of intoxication. In this context, the clues might be having difficulty removing the drivers license, or fumbling the license or insurance card, or not being able to remember where they are. Although the can be honest mistakes, in the mind of a police officer looking for a DWI arrest, they indicate intoxication.

Once the officer believes the person is intoxicated, he will have the citizen step out of his car and typically walk to the back of the car. This is done for several reasons. First is the safety everyone involved. However, the primary reason is so the officer can have the suspected DWI offender stand in front of the patrol car because the car is typically equipped with a video camera. This video camera was activated before the officer ever stopped the citizen. The point of the camera is to record everything that happens during the DWI stop. This video can prove to be crucial, because many times it is the critical piece of evidence in a DWI trial. After all, what better way to convince a jury that the citizen was intoxicated than to show a movie of what happened?

Now that the suspect is positioned in front of the patrol car, and in turn on video, the officer will begin to administer the Field Sobriety Tests, or FSTs. These test were designed by the National Highway Traffic and Safety Administration. Although based on scientific principles, they are anything but scientific. The point of the tests is to determine the existence of "clues" or signs of intoxication. There are three FSTs that are typically administered to a DWI suspect. They include the Horizontal Gaze Nystagmus Test, the Walk and Turn Test, and the One Leg Stand Test.

The Horizontal Gaze Nystagmus Test is essentially an eye exam. The test is designed to determine the existence of nystagmus of the eye. Nystagmus is the uncontrollable movement, or jerking, of the eye. Police officers, in their limited training, are taught that alcohol causes nystagmus. While this is true, there are also virtually dozens of other reasons why a person might exhibit nystagmus that have nothing to do with the consumption of alcohol. Because of this fact, the officer is trained to evaluate whether a person is a good candidate for the HGN test. However, all too often this is either not done correctly, or not done at all. Additionally, there are a number of other factors that might cause a person to exhibit nystagmus. One such reason is the strobe lights atop most patrol cars. Many times, the officer forgets to turn the lights off. When that happens, the test is invalid and should be suppressed by the court.

The next test administered by the officer is typically the Walk and Turn test. This test is not only designed to test a person's balance, but also their ability to follow directions. The officer first has the person stand in the instructional position. This is standing, arms to the side, one foot in front of the other touching heal to toe. The officer will tell the person to remain in that position until told to begin the test. The officer will then illustrate the test which involves taking nine heal-to-toe steps on an imaginary line. At the conclusion of the nine steps, the suspect is to turn by taking a series of small steps, and then returning down the line with another nine heal-to-toe steps. During this test, the suspect should keep his arms at his side and county out loud the steps taken.

The final FST offered by the officer, is the One Leg Stand. It is essentially exactly what it sounds like. The suspect is to choose a leg to stand on while raising the other leg approximately six inches off the ground. During the test, the citizen is to keeps his arms to his side while counting out loud until told to stop by the officer. During this test, the officer is looking for clues which typically include putting the foot down, not counting out loud, using the arms for balance, or swaying.

After a person has been arrested for DWI, they are then transported to the local jail. However, because DWI is unlike any other crime in Texas, the person is typically not simply placed in a general holding cell until bonded out. They are taken to a dedicated DWI room which contains a number of unique items. Typically, this "Intoxilyzer Room" contains the Intoxilyzer 5000 which is the breath test machine. Additionally, the room is equipped with another video camera as well as lines on the floor and wall. The purpose of the camera is to record the suspect's behavior and performance. The lines on the wall and floor are used as indicators of swaying or stepping off the line while performing the FSTs, which are typically offered again. The breath test machine is offered by the officer in an attempt to obtain a blood alcohol content. In Texas, the legal limit is .08, therefore if the officer can obtain a breath test score higher than that, they have a must stronger case.

Texas is considered an "Implied Consent" State. This means a citizen, by accepting a Texas drivers license, is impliedly consenting to a breath or blood test if requested by an officer. Despite that, a citizen stopped and even arrested for DWI can refuse to submit to a breath or blood test. Additionally, a citizen can refuse to perform any FSTs. However, there are obvious risks associated with this choice. If the person refuses to perform any tests, he will almost certainly be arrested for DWI. However, there will be little evidence with which to convict him. Also, by refusing to provide a breath or blood sample, a citizen can be subject to a drivers license suspension as a result. However, again, there will be no test result available at trial.

A DWI trial typically comes down to two pieces of evidence; the DWI video and the breath or blood test result. Because DWI is essentially an opinion crime, the video is used to convince the jury that the defendant was intoxicated by showing his or her performance of FSTs and overall behavior at the scene. Obviously, a breath test result is used to demonstrate the person's blood alcohol level was above .08. The less evidence available to the prosecution is generally better for the defendant. When there is no test result, and a jury is left only with the DWI video, many times the jury will simply compare the appearance of the defendant on the tape with what that juror has seen in the past. This can, of course, be a tremendous help to the defense.

A Conservative Republican for Obama?

The big news in politics today is that President Bush’s former Secretary of State, Colin Powell, is endorsing Senator Barack Obama for president.  Personally, I don’t see why this is a big deal.  It doesn’t matter.  Senator Obama will win the presidency in sixteen days.  Convincingly.  Mark my words.  I’m putting the over-under at fourteen percentage points, and I’ll take the over.

This has certainly been an interesting election.  A “transformational figure” (as Secretary Powell states) versus a so-called maverick.  The first African-American presidential candidate versus the true war-hero candidate.  Both with their own intriguing history battling in the shadow of one of the most disliked presidents in modern history.

As most anyone that has read this blog is aware, I am a conservative Republican.  Always have been.  I am the modern day Alex P. Keaton, or so I’ve been told.  So it should come as no surprise that I don’t generally like Senator Obama.  I take that back.  the senator seems very likeable, and I’m sure if I sat down and spoke with him, I probably would like him.  I don’t like his policies.  But, with him being a liberal Democrat, that should come as no surprise.

Despite my feelings for Senator Obama, that doesn’t mean that I fall in lock-step with Senator McCain.  I don’t.  Those that know me know that I have never liked the senator.  Even before the 2000 election when he went so negative and showed his true colors in the campaign against then Governor Bush, I didn’t like him.  Now he’s doing the same thing.  

The story of John McCain is as compelling as that of Barack Obama.  My next door neighbor was a classmate of Senator McCain’s at the Naval Academy.  He tells me the “maverick” attitude was present even then.  I like that.  I don’t mind at all when people want to do things their own way and don’t really care what others think of them.  Some might say I have some of those same characteristics myself.  At least the part about other people not liking me.

My problem with Senator McCain is that he is not a conservative Republican.  Never has been.  Never will be.  He is an independent.  Again, that’s fine.  If you’re running as an Independent.  But he isn’t.  He stands before the American people, indeed the world, as the flag-bearer of the Republican party.  But John McCain doesn’t speak for all Republicans.  Not even most of them.

My fear in voting for Senator McCain is that over the next four years (because he would not be re-elected for any number of reasons) he would fundamentally change the makeup of the Republican party.  The Republican party that I know would be lost.  The conservative movement, with all of its faults and failures, would still exist, but it would no longer have a political party with which to attach.  We would have Democrat and Democrat-lite.  

So I will not vote for Senator McCain for president, rather I will vote for Senator Obama.  Not just because I’m not willing to give away the proverbial Republican store for McCain’s long-time desire to finally be president, but because I want to see just what Senator Obama can do.

It’s easy to sit on the sidelines and complain about how things are going.  The Democrats have made a cottage industry of it over the last eight years.  Always complaining about things and always telling people how the Republicans have wrongly-handled this or that, but never presenting the American people a true alternative of their own.  Now is their chance.

Senator Obama has a booklet that presents his policies for a number of issues facing the country.  You can find it here.  I read it.  The one question I kept asking myself throughout  was “How are you going to pay for this?”  His plans are expensive.  But they are ambitious, and ambition is nothing if not expensive.

I will give Senator Obama the chance he is asking for.  I will cast my vote for him, and if it matters in one of the most Republican states, and hope he makes it to the Oval Office.  Yet, in reality, I’m not voting for him as much as I’m voting to keep my Republican Party intact.  If Senator Obama can accomplish the things he says he can in four years, then perhaps we will all be better off.  If he doesn’t, then rest-assured this conservative Republican who voted for a liberal Democrat will be one of the loudest voices calling for change.

Hopefully, within the next four years, the Republican party will realize that we handled this election as the Democrats have handled most every other election of the last quarter century.  Hopefully, my Republican party will get its act together and realize who it is.  Four years will come faster than we think.

Under Pressure

Under Pressure

“Pressure pushing down on me
Pressing down on you no man ask for
Under pressure - that tears a building down
Splits a family in two
Puts people on streets”

Queen with David Bowie.

Democratic candidate for Criminal District Court Number Two doesn’t like the way things are being handled by the sitting judge, Wayne Salvant. That’s good to know. At least she isn’t running to be judge just to be judge.

Ms. Tolbert, whom I’ve never met by the way, has a series of YouTube “interviews” available. They appear to be radio interviews which were visually recorded. The respective “topics” are “How Tolbert is different,” “All Judges Are Republican,” “Judge as a Referee,” and the video above, “How Cases are Tried.”

There is also a video of a pancake breakfast fundraising, but although I tried to watch it, I couldn’t finish it. It was so mind-numbingly boring I had to turn it off. It didn’t even have background music. I mean, come on! But back to “How Cases are Tried.”

First of all, I don’t think the title of the video has anything to do with the substance of the video. Ms. Tolbert doesn’t really discuss trying criminal cases in Criminal District Court Two, but rather seems dissatisfied in the manner in which Judge Salvant appoints attorneys to represent those charged with State Jail Felonies.

It appears Ms. Tolbert is uncomfortable with the idea of what is referred to as a “Jail Run.” It is generally more common in misdemeanor courts than felony courts, but it certainly happens. Essentially a jail run is when a number of incarcerated defendants who have yet to be able to post a bond and have no attorney to represent them are brought to court and appointed lawyers to represent them. No problem so far.

However, often what happens is that the appointed attorney is “expected” to resolve the case that day. In a misdemeanor case, this is generally accomplished by pleading the defendant to time served. I have personally experienced this, as I’m sure most criminal defense attorneys have.

The problem arises in felony court. Felonies, even State Jail Felonies, are serious offenses. While the person cannot be sent to TDC, they can be sent for up to two years to a Texas State Jail Facility. This time is day-for-day, meaning there is no credit for good time or any type of parole. So being confronted with a new State Jail Felony case can actually cause some problems because it is a lot for the defendant to understand in the extremely short amount of time he has spoken, in fact known, his newly-appointed lawyer.

Ms. Tolbert believes Judge Salvant has engaged in this type of behavior by appointing attorneys (Ms. Tolbert refers to them as “favorite lawyers”) and “exptecting” them to dispose of the case that day. This is, as Ms. Tolbert says, referred to as Same Day Disposition. And Ms. Tolbert is right, it shouldn’t be a practice to engage in this type of appointment process.

The problem here is this. The judge doesn’t negotiate the plea bargain in the case. The judge doesn’t meet with the defendant and ascertain what is best for the client. The judge doesn’t represent the defendant. The defense attorney does.

Of course, it can be very difficult for any attorney to stand up to a judge in that situation; actually, in many situations. But at the end of the day, that is our job. We can complain about. (God knows we do.) We can go on and on that the judge doesn’t understand what it is like to be a private defense attorney. (The majority of the time they don’t.) And if it bothers us enough, we can refuse to accept appointments so as to eliminate the possibility of it happening to us again. (That is an option because no one is required to represent court-appointed clients.) But it doesn’t change the fact that it is ultimately up to us.

If an attorney is appointed to a client and the judge expects that case to be resolved on the same day, there is only one question; what is in the client’s best interest. As it turns out, it is the same question for all clients, appointed or not, judge-involved or not, whether we like it or not. It’s our job.

Judges make our lives difficult. Water is wet. The sky is blue. No one said this job was easy. If a judge wants us to resolve a case the same day, all we can do is what is in the client’s best interest. If the client wants to take the state’s offer, then it’s resolved. If not, then so be it. To complain that judges put too much pressure on defense attorneys is missing the point.

If the client doesn’t want to plead guilty, for whatever reason, then you set your case for trial, and you make the state prove each and every element beyond a reasonable doubt to a jury. You fight and scratch and claw, and then do it some more. In short, you do your job.

Ignorance is bliss, except...

This is a sign posted in the visitation area of the Tarrant County Greenbay Detention Facility. A free prize for anyone that can spot what's wrong with this picture.