Attacking the Government's case

Serious penalties require a serious defense.

I am dedicated to being successful in every possible case. That's why I examine every fact in an effort to build a winning case. I have a multitude of successful defenses that may help you. I will work to examine every factor in every case that could work in your favor. How will I do it? Read on for a few examples.

1. Attack the traffic-stop.

Police officers often use a minor traffic infraction to initiate a DWI investigation. However, if the stop was improper, then the Government can not use the information obtained as the result of the improper stop against you. As a municipal prosecutor, I have extensive experience trying traffic offenses and questioning police officers about those traffic offenses. If we can prove the stop was improper, you win.

2. Attack the validity of Field Sobriety Tests (Road-Side Tests)

These so-called “tests” are nothing more than balance exercises, designed to prove that you do not have the normal use of your mental or physical faculties by reason of the introduction of alcohol into your system. Before the Government can use these tests, they must prove they were administered correctly. We will attack the administration of the test and ask the judge to exclude them or we will tell the jury why the tests were done incorrectly. Police Officers are given The DWI Detection and Standardized Field Sobriety Testing Manual when they get certified to administer the Field Sobriety Tests; this manual instructs them on the proper administration of the Field Sobriety Tests. This manual states the following:

“THE STANDARDIZED FIELD SOBRIETY TESTS ARE NOT AT ALL FLEXIBLE. THEY MUST BE ADMINISTERED EACH TIME, EXACTLY AS OUTLINED IN THE COURSE.”

“IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN:

• THE TESTS ARE ADMINISTERED IN THE PRESCRIBED, STANDARDIZED MANNER
• THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECT'S PERFORMANCE
• THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE”

I have taken the same course taken by your arresting officers, and I am certified to administer the Field Sobriety Tests. I will examine the administration of the tests and if done improperly (as is often the case) I will ask the judge to exclude them.

3. Attack the accuracy of the Field Sobriety Tests

Further, according to this same manual, even when done correctly under laboratory conditions the Field Sobriety Tests are only arguably accurate to the following percentages:

• Horizontal Gaze Nystagmus (the “follow the pen” test): 77% accurate
• The Walk & Turn (the “walk a straight line” test): 68% accurate
• The One Leg Stand (“stand on one leg” test”): 65% accurate.

We will argue that even if done correctly, these tests are far too inaccurate to support a conviction. There are a host of reasons why a person might not be able to “pass” one of these tests, including reasons set forth in the manual. If the jury attempts to complete the tests themselves while deliberating, they will see that these tests are not easy for all people to perform. We will remind the jury that you were on a dark roadside, late at night, taking tests that were foreign to you, with the possibility of an arrest looming over your head.

4. Attack the Government's conclusion that Horizontal Gaze Nystagmus was observed because of alcohol ingestion

Contrary to popular belief, the observation of Nystagums (what the “follow the pen” test is looking for) can result because of many factors, including strobe lights, nicotine, flu, head injuries, disease, and genetics, just to name a few. The Court of Special Appeals in Schultz v. State, 664 A.2d 60, 77 (Md. App. 1995) acknowledged 38 causes of HGN unrelated to intoxication.

5. Attack the Government's conclusion that alcohol induced nystagmus was observed at all

There are forty seven types of nystagmus in individuals, separate from Horizontal Nystagmus.

6. Show that you behaved “normally” at all other times

The DWI Detection and Standardized Field Sobriety Testing Manual contains “clues” that officers are trained to look for when you pull over, when they talk to you, and when you exit the car because they may indicate intoxication, including the following:

• Stopping Sequence
  • an attempt to flee
  • no response
  • slow response
  • an abrupt swerve
  • sudden stop
  • striking the curb or other object
     
• Personal Contact Sequence
  • blood shot eyes
  • soiled clothing
  • fumbling fingers
  • alcohol containers
  • drugs or paraphernalia
  • bruises bumps or scratches
  • unusual actions
  • slurred speech
  • admission of drinking
  • inconsistent responses
  • abusive language
  • unusual statements
  • angry or unusual reactions
  • inability to follow instructions
     
• Exit Sequence
  • cannot open the door
  • leaves the vehicle in gear
  • climbs out of the vehicle
  • leans against the vehicle
  • keeps hands on the vehicle for balance

We will visit with the Police Officer about every one of these items. Generally, the police report will show that you had bloodshot eyes, smelled of an alcoholic beverage, and had slurred speech. Those observations can be caused by many things other than intoxication and we will attack them on that basis. Everything that the police officer does not say you did wrong, we will argue you did correctly, soberly, and normally

7. Attack the Breath Test

• 15 minute waiting period violations
  
  A requirement contained in virtually every checklist or set of operating instructions of any infrared breath testing device provided by the manufacturer is that of observing the person being tested directly and continuously for 15 minutes. This waiting period is to eliminate residual alcohol and other contaminates within the mouth cavity.
   
• No proper dedicated power source: not grounded, "conditioned," or surge-protected
  
  Because minor drops or peaks in power lines can cause false, unreliable readings on the 5000, the manufacturer recommends a dedicated, grounded, surge-protected 115 VAC power supply. Preferably, a battery back-up will be utilized to assure uninterrupted power. Without such safeguards, your result could be either higher or lower than the true value of your alcohol concentration. We will check the video tape footage for irregularities in the power supply. The Intoxilyzer 5000 is highly susceptible to voltage fluctuations, which can produce erroneously high results We will subpoena the state's maintenance and calibration technician ( technical supervisor) and his/her "Supervisor's Manual" or other directives for the Intoxilyzer 5000. We will use the manual and GBI directives to examine the state's own expert on the proper power source and supply.
   
• Mouth Contamination
  
  Ethyl alcohol other than residual alcohol may be present in a person's mouth. Many items are likely to contain their own amounts of ethyl alcohol or other volatile compounds in sufficient amounts to affect the reading given by the machine., including, smokeless tobacco, dentures and the adhesives used to seal dentures to mouth surfaces, mints, lozenges, lip balm or breath sprays containing camphor, menthol or SD alcohol, blood in the subject's mouth, asthma inhalers which contain alcohol or alcohol-like volatiles
   
• Ineffective slope detector
  
  Maintenance tests are rarely conducted on the mouth alcohol detector in the presence of a measurable breath alcohol concentration.
   
• Maintenance/Calibration
  
  We will check to see if the machine was properly maintained.
   
• Environmental contamination of subject
  
  Some solvents and other substances can cause a false reading on an Intoxilyzer 5000, despite its extra safeguards. Exposure to these interferents can result from exposure to beauty and health care products, such as hair spray, acetone-based nail polish remover, paints containing toluene, benzene, xylene, denatured alcohol,
   
• Subject's physical or medical limitations
  
  Tagamet and other medications for ulcers and chronic stomach pain can lead to false positive readings on breath machines. Esophagheal hernia can permit stomach gas laced with alcohol to push back up the esophagus. False positive readings are possible, especially with the unreliable slope detector of the 5000. Gastric reflux (aka Heartburn) the stress of arrest causes some arrestees to regurgitate alcohol into their mouths. Prescription drugs may cause a false positive reading on a breath machine. Diabetes produces acetone when blood sugar levels are off and may cause a false positive on the Intoxylizer 5000. Dieting (Adkins Diet) can cause high levels of "ketones" to be produced in the breath, resulting in a “false positive” for ethanol. Alcoholics produce prodigious amounts of acetaldehyde and it can easily be misread as alcohol.
   
• Body temperature
  
  A 1° C increase in body temperature (1.8° F) can cause a .03 higher reading on the breath test. A body temperature of 103.2° F can cause a false positive reading of .06. Illness, menstrual period, stress, hot tubs, sports and other causes can increased body temperature. Currently, Texas does not check a subjects body temperature prior to breath testing.
   
• 2100:1 ratio
  
  The Intoxylizer 5000 breath testing program assumes that everyone will have a partition ratio of 2100 to 1, meaning that for every one molecule of alcohol in 1 cc of volume in the breath, it is presumed that there are 2100 molecules of alcohol in the same volume of blood. The actual partition ratios can vary greatly and while they may not be used to attack the validity of the breath test, it can be used to argue that the test was not accurate. This is particularly true when you appear to be sober.