The primary student manual “DWI Detection and Standardized Field Sobriety Testing” published in February 2006 by NHTSA spends less than half a page on its subsection “Visual Detection of DWI Motorcyclists”. It’s in Chapter 5, Phase One “Vehicle in Motion” immediately after the section on visual cue descriptions for auto motorists.
However, in March of 2005 NHTSA published a brochure on the subject entitled “The Detection of DWI Motorcyclists”.
From both sources, the list of driving cues that officers are trained to look for in Motorcycle DWI/DUI cases are listed as either excellent (above 50% chance) or good (30-50% chance):
Excellent Cues
Drifting during turn or curve
Trouble with dismount
Trouble with balance at stop
Turning problems
Inattentive to surroundings
Inappropriate or unusual behavior
Weaving
Good Cues
Erratic movements while going straight
Operating without lights at night
Recklessness
Following too closely
Running stop light or sign
Evasion
Wrong way
Good fodder for DWI lawyers in motorcycle cases where the defendant is stopped ‘only’ for speeding (which is pretty common)…page 5 of the brochure:
Motorcyclists stopped for excessive speed are likely to be driving while intoxicated only about 10 percent of the time (i.e., 10 times out of 100 stops for speeding). But because motorcyclists tend to travel in excess of posted speed limits, speeding is associated with a large portion of all motorcycle DWI arrests.
In other words, while only a small proportion of speeding motorcyclists are likely to be considered DWI, the large number of motorcyclists who are speeding results in a large number of DWIs, despite the relatively small probability.
In cross examination, this can be used if the stopping officer testifies that speeding is a sign of intoxication (which belies the common sense of the jury as well).
Also, the officer should be crossed on all the things your client did right: no drifting, no trouble dismounting, etc.
DWI lawyers should consider asking the officer whether the dismount itself is a useful sobriety test. Many officers will openly scoff at the notion…that’s fine. Prod him to insist that only the NHTSA field sobriety tests are appropriate for evaluating the likeliness of intoxication or impairment.
Then have him read this paragraph from pp7-8 from the NHTSA brochure:
Trouble with Dismount
Parking and dismounting a motorcycle can be a useful field sobriety test. The motorcyclist must turn off the engine and locate and deploy the kickstand. The operator must then balance his or her weight on one foot while swinging the other foot to dismount. But first, the operator must decide upon a safe place to stop the bike. Problems with any step in this sequence can be evidence of alcohol impairment.
And having absolutely no trouble with the dismount is at least some evidence of a lack of impairment, correct Officer? (Doesn’t matter how he answers; the jury gets the point.)
Thursday, July 19, 2007
Tests: Some People Do Better Than Others
Surfing the blogosphere I run across a post entitled “Examination Blanking Out” by Razeet:
Test anxiety is normal and can even help us function well in testing situations. The problem develops when the level of nervousness is so high that it interferes with what one is there to do.
As a result, with two people taking the exact same test, one might be calm, cool and collected, while the other is a pile of perspiration and blanking out.
Now, his post doesn’t have anything to do with Field Sobriety Tests; more likely he’s talking about studying all semester, and cramming for an exam, and still not doing well.
But DWI lawyers should remember that this phenomenon, that ‘some folks do better than others on tests’, and for a variety of reasons, is a well known fact. Indeed, it should be the theme of most DWI breath test refusal trials: starting in jury selection, bolstered by the arresting officer’s own testimony, and repeated in closing.
A series of questions I use at the ALR hearing to set this defense up goes something like this (answers left out – I don’t really care if the officer disagrees):
Officer, you agree that folks in the general public vary greatly in their ability to perform physical tasks?
Some people are gifted athletes, and some people are super klutzy?
Most people are somewhere in between?
Like most characteristics, there’s probably a bell curve of natural physical abilities?
And you’d never met my client before that night?
And you don’t know where on that bell curve he might fall?
He might be an Olympic athlete, or he might be uncoordinated, you just don’t know?
I say I don’t care what the officer answers, because a jury will know that the truthful answer to all these questions is 'Yes'. If an officer disagrees, or ‘weasels’ on one of these basic truths, you may even be better off. You can certainly argue that he graded too hard in his evaluation of your client.
The basic point is this: everyone knows that ‘some folks do better than others’ on all types of tests…including DWI field sobriety tests.
Test anxiety is normal and can even help us function well in testing situations. The problem develops when the level of nervousness is so high that it interferes with what one is there to do.
As a result, with two people taking the exact same test, one might be calm, cool and collected, while the other is a pile of perspiration and blanking out.
Now, his post doesn’t have anything to do with Field Sobriety Tests; more likely he’s talking about studying all semester, and cramming for an exam, and still not doing well.
But DWI lawyers should remember that this phenomenon, that ‘some folks do better than others on tests’, and for a variety of reasons, is a well known fact. Indeed, it should be the theme of most DWI breath test refusal trials: starting in jury selection, bolstered by the arresting officer’s own testimony, and repeated in closing.
A series of questions I use at the ALR hearing to set this defense up goes something like this (answers left out – I don’t really care if the officer disagrees):
Officer, you agree that folks in the general public vary greatly in their ability to perform physical tasks?
Some people are gifted athletes, and some people are super klutzy?
Most people are somewhere in between?
Like most characteristics, there’s probably a bell curve of natural physical abilities?
And you’d never met my client before that night?
And you don’t know where on that bell curve he might fall?
He might be an Olympic athlete, or he might be uncoordinated, you just don’t know?
I say I don’t care what the officer answers, because a jury will know that the truthful answer to all these questions is 'Yes'. If an officer disagrees, or ‘weasels’ on one of these basic truths, you may even be better off. You can certainly argue that he graded too hard in his evaluation of your client.
The basic point is this: everyone knows that ‘some folks do better than others’ on all types of tests…including DWI field sobriety tests.
DWI Occupational License: How Many Hours Can I Drive?
If your license is suspended through the ALR process for a DWI arrest in Texas, the default for occupational license driving time is four hours a day.
However, a judge has discretion to increase the time allowed to twelve hours a day. Likewise, a judge has the ability to reduce it below four hours a day…and in some jurisdictions, they do that quite frequently.
The number of hours you are granted will depend on how much you (or your DWI lawyer) can show the court you need to drive. It is, after all, an “essential needs” license.
In my experience, most judges in Austin understand that in today’s world people work various hours, have multiple jobs, use daycare and have child rearing responsibilities and other types of important commitments. If it is a first time DWI with no collision and no ‘aggravating’ factors, most of my Austin clients can provide me with the documentation I need to get a judge to increase the driving time from the four hour default rule all the way up to the twelve hour a day maximum.
No, an occupational license is not the same as your regular “24/7 drive anywhere anytime you want” license that you are used to. But it’s probably going to allow you to continue to do all the things you need to do.
However, a judge has discretion to increase the time allowed to twelve hours a day. Likewise, a judge has the ability to reduce it below four hours a day…and in some jurisdictions, they do that quite frequently.
The number of hours you are granted will depend on how much you (or your DWI lawyer) can show the court you need to drive. It is, after all, an “essential needs” license.
In my experience, most judges in Austin understand that in today’s world people work various hours, have multiple jobs, use daycare and have child rearing responsibilities and other types of important commitments. If it is a first time DWI with no collision and no ‘aggravating’ factors, most of my Austin clients can provide me with the documentation I need to get a judge to increase the driving time from the four hour default rule all the way up to the twelve hour a day maximum.
No, an occupational license is not the same as your regular “24/7 drive anywhere anytime you want” license that you are used to. But it’s probably going to allow you to continue to do all the things you need to do.
Effect of DWI Dismissal on ALR License Suspension
Let’s say you are arrested for DWI in Austin, Tx, and face 2 cases: (1) the criminal DWI charge, and (2) the Driver’s License Suspension Hearing.
In Austin, the Driver’s License hearing will be probably be held before a resolution of the DWI, so again, continuing our hypothetical, let’s say the 180 day driver’s license suspension is imposed for your refusal to take the breath test. Remember, you were already under arrest for DWI when you were asked to submit to a specimen of breath or blood, so you made a wise choice as far as the criminal charge is concerned to refuse the test.
Now let’s say that your DWI lawyer goes to court, and prior to trial, works out a deal with the prosecutor that they agree to reduce the charge of DWI to Reckless Driving, or maybe even a traffic ticket. The benefit to you is that you are assured of not being convicted of DWI.
So you accept.
Well, you may still be under that DL suspension, driving around town with an Occupational License, but not 24/7 like you are used to. The suspension will be lifted, right?
Wrong. Only a ‘Not Guilty’ verdict at bench or jury trial will reverse the suspension now. Texas Transportation Code Section 524.015 states, in part:
…the disposition of a criminal charge does not affect a driver's license suspension under this chapter and does not bar any matter in issue in a driver's license suspension proceeding under this chapter… A suspension may not be imposed under this chapter on a person who is acquitted of a criminal charge under Section 49.04…
A ‘dismissal’ of a DWI charge is not an ‘acquittal’ (i.e., not guilty verdict), and therefore the license will stay suspended for the original term imposed. An in jurisdictions outside of Austin, where the DWI case may run quicker than the suspension hearing, you will still be facing the loss of your license.
In my experience, most clients prefer a certain outcome in terms of getting the DWI dismissed, than to risk it all by rolling the dice at trial. But it’s something to think about. And if you are facing DWI charges in Texas, your lawyer needs to be able to lay out all the options for you.
In Austin, the Driver’s License hearing will be probably be held before a resolution of the DWI, so again, continuing our hypothetical, let’s say the 180 day driver’s license suspension is imposed for your refusal to take the breath test. Remember, you were already under arrest for DWI when you were asked to submit to a specimen of breath or blood, so you made a wise choice as far as the criminal charge is concerned to refuse the test.
Now let’s say that your DWI lawyer goes to court, and prior to trial, works out a deal with the prosecutor that they agree to reduce the charge of DWI to Reckless Driving, or maybe even a traffic ticket. The benefit to you is that you are assured of not being convicted of DWI.
So you accept.
Well, you may still be under that DL suspension, driving around town with an Occupational License, but not 24/7 like you are used to. The suspension will be lifted, right?
Wrong. Only a ‘Not Guilty’ verdict at bench or jury trial will reverse the suspension now. Texas Transportation Code Section 524.015 states, in part:
…the disposition of a criminal charge does not affect a driver's license suspension under this chapter and does not bar any matter in issue in a driver's license suspension proceeding under this chapter… A suspension may not be imposed under this chapter on a person who is acquitted of a criminal charge under Section 49.04…
A ‘dismissal’ of a DWI charge is not an ‘acquittal’ (i.e., not guilty verdict), and therefore the license will stay suspended for the original term imposed. An in jurisdictions outside of Austin, where the DWI case may run quicker than the suspension hearing, you will still be facing the loss of your license.
In my experience, most clients prefer a certain outcome in terms of getting the DWI dismissed, than to risk it all by rolling the dice at trial. But it’s something to think about. And if you are facing DWI charges in Texas, your lawyer needs to be able to lay out all the options for you.
DRIVING WHILE .... hangover
Driving While Intoxicated Hung-Over…from CrimProf Blog:
In a ruling that expands the legal meaning of "under the influence," a state appeals court Thursday ruled a hangover is also an impairment -- whether it's from drinking alcohol, taking cocaine or other substances.
The judges, in a 3-0 decision, ruled a driver who had taken cocaine but was not intoxicated when police stopped him, was still a danger to other drivers. While the cocaine was no longer active it was the "proximate cause of his impaired behavior," the judges found…
"The potential impact is enormous," said John Tumelty, who represented the driver, David Franchetta, in the case.
"Where do you draw the line? Even though a guy is not high and a drug is not active in the guy's system, if he's tired and sluggish and hung over from previous use, does that makes him under influence? If they say a drug hangover makes you guilty, what about an alcohol hangover?"
Wow. At least this doesn’t apply to Texas DWIs. (Yet.)
When I relate stories about the criminal ‘justice’ system to her, my wife often asks me, “Doesn’t the law have some common sense written into?”
Apparently not.
In a ruling that expands the legal meaning of "under the influence," a state appeals court Thursday ruled a hangover is also an impairment -- whether it's from drinking alcohol, taking cocaine or other substances.
The judges, in a 3-0 decision, ruled a driver who had taken cocaine but was not intoxicated when police stopped him, was still a danger to other drivers. While the cocaine was no longer active it was the "proximate cause of his impaired behavior," the judges found…
"The potential impact is enormous," said John Tumelty, who represented the driver, David Franchetta, in the case.
"Where do you draw the line? Even though a guy is not high and a drug is not active in the guy's system, if he's tired and sluggish and hung over from previous use, does that makes him under influence? If they say a drug hangover makes you guilty, what about an alcohol hangover?"
Wow. At least this doesn’t apply to Texas DWIs. (Yet.)
When I relate stories about the criminal ‘justice’ system to her, my wife often asks me, “Doesn’t the law have some common sense written into?”
Apparently not.
Police Admit Using Incorrect Standard for 'DWI'
Police in New York State have admitted to arresting and charging drivers with any alcohol on their breath, although the law only criminalizes impaired driving. Well, that’s my DWI defense lawyer take on the story, but you tell me:
"If you're going to drink, do it at home, designate a driver or hire a taxi. We're not saying there's anything wrong with drinking - just drinking and driving," said state police Lt. Douglas Larkin of Troop K in Westchester…
Once the driver rolls down the window, (the officer) said, it's easy to tell if he or she has been drinking.
"The first thing that hits you is the odor of alcohol -it's so obvious," he said. "I've had a few drivers who know they've been drinking and try to play it down, but the odor on their breath gives them away."
“Drinking and driving.” And having alcohol on your breath. These are the main standards it appears that police use to make an arrest for DWI.
But the law itself doesn’t say having a detectable odor of alcohol on your breath and operating a motor vehicle is illegal (unless you are under 21 – then it’s a DUI in Texas). Driving while having lost the normal use of your mental or physical faculties, due to the introduction of alcohol, a controlled substance, etc., is illegal.
On a side note, I’ll add this: I advise friends and family, and anyone else who asks, that in Austin, DWI arrests are made using this same standard.
If you are pulled over for a traffic violation in Austin, Texas, and the police officer smells the odor of an alcoholic beverage on your breath, you are very likely going to jail for DWI. I have heard testimony from Austin Police Department DWI Task Force officers that is substantively the same as what is quoted above.
"If you're going to drink, do it at home, designate a driver or hire a taxi. We're not saying there's anything wrong with drinking - just drinking and driving," said state police Lt. Douglas Larkin of Troop K in Westchester…
Once the driver rolls down the window, (the officer) said, it's easy to tell if he or she has been drinking.
"The first thing that hits you is the odor of alcohol -it's so obvious," he said. "I've had a few drivers who know they've been drinking and try to play it down, but the odor on their breath gives them away."
“Drinking and driving.” And having alcohol on your breath. These are the main standards it appears that police use to make an arrest for DWI.
But the law itself doesn’t say having a detectable odor of alcohol on your breath and operating a motor vehicle is illegal (unless you are under 21 – then it’s a DUI in Texas). Driving while having lost the normal use of your mental or physical faculties, due to the introduction of alcohol, a controlled substance, etc., is illegal.
On a side note, I’ll add this: I advise friends and family, and anyone else who asks, that in Austin, DWI arrests are made using this same standard.
If you are pulled over for a traffic violation in Austin, Texas, and the police officer smells the odor of an alcoholic beverage on your breath, you are very likely going to jail for DWI. I have heard testimony from Austin Police Department DWI Task Force officers that is substantively the same as what is quoted above.
AUSTIN DWI, Statute of Limitations and Driver's License Questions
Question: My wife and I were pulled over in August 2005 on a rural road approximately 5 miles from my house by DPS who at the time was going the other direction on a two lane road.
We had been out seeing my wife’s favorite band and it was her night out. He asked me if I know what we were pulled over for and I say no. License plate light out! So no big deal until he shines the light at my wife and says, “What’s wrong with her?”
"She's sleeping,” I say. Well he asks where we have been and I'm truthful, her night out and I'm the designated driver. He proceeds through the get out of the car deal, does the eye test, then the one leg to 30, then walk the line....then the finger count....no problem here.....
He goes and finally wakes up my wife and talks with her. Well she's hammered of course. Then he comes back and arrests me after I refuse the breathalyzer.
Then he arrests her for public intoxication. I convince him to let a friend come get her and the vehicle. He does and takes me to the pokey. Since then my lawyer has sent three letters to the court letting them know when he will be out of town. The court has never sent anything to me at my home or office.
Since it has been two years, can I stroll down to the DPS and get my license or will they snatch me up? I appreciate any input.
Reply: What county is this from? Also, you are saying it has been almost two years from the arrest? The ALR suspension would usually be over well before then. (Unless there are priors, perhaps...do you have any prior DWI arrests? or prior alcohol related license suspensions?)
Follow Up: I had one prior when I was 20 and I was 35 when I got this one. Yes two years since arrest in August. It is in [Anonymous] County. I got my license suspended for not taking the breathalizer.
I haven't done anything since. No license, [rest of sentence deleted]. But if I can go and get it without being harassed I would love to do so.
Reply: Well, the 15 year old DWI can now (unfortunately) be used to enhance your new DWI charge to a DWI 2nd. It used to be the law that after 10 years, new DWI charges would be filed as Class B 'first offense' DWIs. But that's no longer the case.
But ALR (pretrial Driver's License Suspensions arising out of the DWI arrest) only started in 1995, so you shouldn't have any enhanceable alcohol related contacts. If there were prior DWI related license suspensions within the applicable time period, DPS would have sought a 2 year suspension.
I asked because based on your facts, it sounds like DPS probably sought a 180 day license suspension, which would have started either 40 days after the arrest, if you did not request a hearing to contest the suspension. And if you, or your DWI lawyer did request the hearing within the first 15 days of the arrest, certainly the hearing would have happened and the 180 day suspension is probably up. I know that would be the case for an Austin DWI arrest, but I am unfamiliar with practice and docketing in your neck of the woods.
If you got an occupational license during the original ALR refusal 180 day driver's license suspension, and filed it within the 30 day grace period with Texas DPS, then they would have made you pay the $125 reinstatement fee at that time. That would mean your license was no longer suspended.
If you never filed an occupational, or never went to pay DPS the reinstatement fee, then that is still owed, and will be necessary to get your license back.
Sounds like you've got an attorney helping you on the DWI. You probably need to contact him for more specific information.
One last note: Looks like you found my DWI blog by searching for "Statute of limitations" and "DWI Texas". You certainly need to find out from your current DWI attorney whether or not the State has filed a complaint and information officially charging you with the DWI at your local County Clerk's office. If the full 2 years runs without them doing that, you should have a legal defense to being prosecuted for the DWI criminal charge
We had been out seeing my wife’s favorite band and it was her night out. He asked me if I know what we were pulled over for and I say no. License plate light out! So no big deal until he shines the light at my wife and says, “What’s wrong with her?”
"She's sleeping,” I say. Well he asks where we have been and I'm truthful, her night out and I'm the designated driver. He proceeds through the get out of the car deal, does the eye test, then the one leg to 30, then walk the line....then the finger count....no problem here.....
He goes and finally wakes up my wife and talks with her. Well she's hammered of course. Then he comes back and arrests me after I refuse the breathalyzer.
Then he arrests her for public intoxication. I convince him to let a friend come get her and the vehicle. He does and takes me to the pokey. Since then my lawyer has sent three letters to the court letting them know when he will be out of town. The court has never sent anything to me at my home or office.
Since it has been two years, can I stroll down to the DPS and get my license or will they snatch me up? I appreciate any input.
Reply: What county is this from? Also, you are saying it has been almost two years from the arrest? The ALR suspension would usually be over well before then. (Unless there are priors, perhaps...do you have any prior DWI arrests? or prior alcohol related license suspensions?)
Follow Up: I had one prior when I was 20 and I was 35 when I got this one. Yes two years since arrest in August. It is in [Anonymous] County. I got my license suspended for not taking the breathalizer.
I haven't done anything since. No license, [rest of sentence deleted]. But if I can go and get it without being harassed I would love to do so.
Reply: Well, the 15 year old DWI can now (unfortunately) be used to enhance your new DWI charge to a DWI 2nd. It used to be the law that after 10 years, new DWI charges would be filed as Class B 'first offense' DWIs. But that's no longer the case.
But ALR (pretrial Driver's License Suspensions arising out of the DWI arrest) only started in 1995, so you shouldn't have any enhanceable alcohol related contacts. If there were prior DWI related license suspensions within the applicable time period, DPS would have sought a 2 year suspension.
I asked because based on your facts, it sounds like DPS probably sought a 180 day license suspension, which would have started either 40 days after the arrest, if you did not request a hearing to contest the suspension. And if you, or your DWI lawyer did request the hearing within the first 15 days of the arrest, certainly the hearing would have happened and the 180 day suspension is probably up. I know that would be the case for an Austin DWI arrest, but I am unfamiliar with practice and docketing in your neck of the woods.
If you got an occupational license during the original ALR refusal 180 day driver's license suspension, and filed it within the 30 day grace period with Texas DPS, then they would have made you pay the $125 reinstatement fee at that time. That would mean your license was no longer suspended.
If you never filed an occupational, or never went to pay DPS the reinstatement fee, then that is still owed, and will be necessary to get your license back.
Sounds like you've got an attorney helping you on the DWI. You probably need to contact him for more specific information.
One last note: Looks like you found my DWI blog by searching for "Statute of limitations" and "DWI Texas". You certainly need to find out from your current DWI attorney whether or not the State has filed a complaint and information officially charging you with the DWI at your local County Clerk's office. If the full 2 years runs without them doing that, you should have a legal defense to being prosecuted for the DWI criminal charge
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