State of Texas v. S.B.

James Morris Balagia

Case Conclusion Date:April 2, 2010

Practice Area:DUI / DWI

Outcome:(Not available)

Description:I was brought in by another attorney to win a Bexar County DWI with SFST (standardized field sobriety tests) but No Breath Test case. After reviewing the police report and realizing there wasn’t a video I went into action. I looked into my Video Achieves and found another DWI Video by the same arresting officer. I performed a DWI Video written review and discovered that the arresting officer performed the HGN portion of the Standardized Field Sobriety Tests (SFST) incorrectly in the prior case. Under Texas case law, Emerson v. State of Texas, if the HGN portion of the SFST administration is done incorrectly then the results of that test (Horizontal Gaze Nystagmus) shall be suppressed. Often it is better to let the officer testify about how accurate the HGN test during his direct testimony and then on cross examination i pick apart the poor administered test. That way a jury or well informed judge can disregard those results and will also question everything else the officer did during the arrest. I agreed to assume First Chair in this trial so i decided that I would cross examined the arresting officer. Depending on how the case looked after the State rested I would decide whether to put my client on the stand and questioned him during the direct examination portion of his testimony. During the cross examination of the arresting officer I got him to agree that according to the SFST Manual the administration of the HGN must follow protocol or the validity of the field studies is compromised. After a rigorous cross examination I got the officer to admit that he does the HGN and the other tests according to the standardized protocol in every DWI investigation. He also stated that he does the tests the same exact way every time. After locking him into that statement I compromised the officer’s testimony by playing the DWI video tape in my possession which showed that same officer failed to follow the protocol during the HGN test in another DWI arrst. The Judge disregarded the HGN results and the credibility of the officer was severely damaged. I had spent time with my client going over his truthful testimony and felt he could withstand the cross examination by the prosecutor. Although I usually advise against submitting my clients to cross examination we decided to go for the win. The client did a great job of truthfully testifying (or he wouldn’t have taken the stand) and withstood a harsh cross examination by the prosecutor. After considering the evidence presented and the lack of foundation to the arrest, the Judge found our client NOT GUILTY. This ended what had become a nightmare for the client and his plans for his future. He was ecstatic over the victory. We can now get his arrest record expunged and he can move forwaard with his life plans without a wrongful conviction.

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