The Stop

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.


The Scene - The Basics

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.


The Scene - The Video

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?


The Scene - The FSTs

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

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 Walk and Turn Test

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 One-Leg-Stand Test

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.


The Jail Visit

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.


The Right to Refuse

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.


The DWI 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.