State of Texas v. C.A. - Dismissed on November 6, 2008
At 10:42 pm on June 19, 2008, Client was driving home when she was stopped for speeding, traveling 70mph when restricted to 60mph on Highway 290 in Houston, Texas. The police officer reported that Client was weaving back and forth, and in and out of the inside lane of traffic. The police officer also reported that Client almost struck the HOV barrier wall. Once stopped, the police officer observed an odor of alcohol, red eyes, and fair speech. The officer also observed that Client's ability to walk was fair and her ability to turn was fair, and that she swayed while balancing. When asked whether she had anything to drink, Client denied drinking. The officer asked Client to perform Standardized Field Sobriety Tests and observed all 6 clues on the Horizontal Gaze Nystagmus Tests. Client refused all other Field Sobriety Tests. Later, Client also refused to take a breath test.
After viewing the video I observed that Client spoke clearly and precisely throughout the encounter. At no point during the encounter did I observe Client to be unsteady while walking, or to have trouble balancing, nor did Client exhibit any swaying motion at any time during the encounter. I observed Client to become more and more frustrated by the officer's persistent requests to perform additional tests, and to admit that she had been drinking. Client continued to deny drinking and to ask for justification from the officer for the Field Sobriety Tests. The officer continued to insist that he smelled alcohol and stated that Client was speeding and that she had almost hit the barrier wall. Client stated that she was on the phone and had just come from visiting her sister in the hospital. Since the officer was not providing Client with a satisfactory answer, Client continued to refuse Field Sobriety Tests. Client later refused the breath test.
Medical Records were provided to prove that Client's sister was in the hospital the night Client was arrested, this explained Client's red eyes because she was crying, Client also suffered from allergies. Client's cell phone records were provided to show that she was on the phone at the time of her arrest; this explained any weaving the officer might have seen. Client's medical records were provided to show that she was under a doctor's care for asthma, bronchitis and dyspnea, and that Client was prescribed Formoteral, Albuteral, Advair, and Singulair. A letter from Client's doctor established that she was restricted from all activities that could cause shortness of breath, such as taking a breath test. During the course of Client's case, Client was hospitalized for several days due to COPD. At trial Client would have testified that she works in the oil industry in sales and that she is an aggressive driver due to her rigid schedule.
There were two obstacles to convincing the District Attorney to dismiss the Client's case. First, Client had been convicted of DWI three years earlier. Second, the Client had refused all SFSTs except HGN and refused the BAC test. Eventually the prosecutor finally admitted that she would not be able to make her case because of the evidence we produced.