State of Texas v. M.K. - Dismissed on September 29, 2009
At 2:25am on April 15, 2009, Deer Park Police received a citizen report of an intoxicated driver passed out in his vehicle. Client was asleep in his motor vehicle which was parked in a Wal-Mart parking lot in Deer Park, Texas. The officer reported that the engine of the Jeep was running, that the transmission was in drive, and that Client's foot was on the break. The police officer reported an odor of alcohol, red/glassy eyes, and slurred speech. When asked whether he had anything to drink, Client stated "a lot". The officer asked Client to perform Standardized Field Sobriety Tests and observed all 6 clues on the Horizontal Gaze Nystagmus Tests. On the One Leg Stand Test the officer observed the following 4 clues: Client swayed, used arms for balance, hops, and dropped his foot. On the Walk and Turn Test the officer observed the following 4 clues: failed to maintain the start position, used arms for balance, and missed heel to toe on all steps, and stepped off the line on every step. Client refused to take a Breath Test.
After viewing the video I observed that Client was very intoxicated and the officer's report was accurate with regard to the Field Sobriety Tests.
There were four obstacles to convincing the District Attorney to dismiss the Client's case. First, Client had pled guilty to DWI four years earlier and had done a year of probation. Second, a year prior to pleading guilty to DWI, Client had gone to trial on a DWI and was found Not Guilty. Third, Client had was obviously intoxicated on the video and refused the BAC test. Fourth, Client had told the police officer that he had drank "a lot".
The District Attorney's decision to dismiss came down to whether she could prove intoxication at the time of operation. The District Attorney had enough evidence for a jury to find that Client was operating a Motor Vehicle within the meaning of the law. However would the jury have been sympathetic to my Client's decision not to drink and drive?
At trial, Client's testimony would have been that he had met a friend at the Wal-Mart parking lot and had ridden with the friend to the bar. After a night of drinking Client's friend dropped him off at his car. Client knew he was too drunk to drive and decided to sleep it off in his car. The engine was running so that Client could run the air conditioner and stay cool while he slept. To find Client guilty of DWI, the jury would have had to been willing to punish Client for doing the right thing.