State of Texas v. J.H. - Dismissed on October 7, 2008
Per the police officer's report, on March 8, 2008 at 2:17am, the officer observed Client stopped at a red light on Washington Avenue in Houston, Texas. When the light turns green Client does not move until the car behind him honks. Per the offense report, the officer moves in behind Client and observed Client fail to maintain a single lane of traffic by crossing the lane markers as well as the center line.
The officer reported that he observed a distinct odor of alcohol, bloodshot eyes, and fair speech. The officer further reported that Client's ability to walk was poor and his ability to turn was poor, and that he swayed while balancing. When asked whether he had anything to drink, Client admitted to 3 beers and one vodka and Red Bull. 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 3 clues: Client swayed, used arms for balance, and drops foot. On the Walk and Turn Test the officer observed the following 2 clues: can't maintain balance in the start position and starts too soon. Client refused to take a breath test.
At trial Client would have testified that he was on a first date. That he had two beers with dinner and one beer and a vodka and Red Bull while at a local club. Client would further testify that he did not immediately take off from the intersection because he was talking to his date and they were playing with his iPod.
The video tape was running during the entire traffic stop. The video shows Client sitting at the red light with a SUV directly behind Client. The light turns green and Client does not move immediately, however Client's car does begin moving before opposing traffic reaches Client's side of the intersection. When this happens the officer makes a radical maneuver by moving his patrol car from the left turn lane into the next lane of traffic behind the SUV which was behind Client. Then the officer moves into the far right lane to pass the SUV and then back to the left between the SUV and Client.
The video then shows Client's car move to the left within his own lane and his tire touches the center line for an instant, at which time the officer initiates a traffic stop. In response to the traffic stop, Client makes a left turn at the next light and pulls into a parking lot. Client's driving was flawless.
Client would have further testified that he was watching the officer make these radical moves in his rearview mirror, which is what lead to Client drifting to the center line.
The video tape shows the officer wearing a heavy winter coat while conducting the Field Sobriety Tests in a parking lot at the corner of Washington Avenue and Waugh Street. Client is only wearing a light weight long sleeve dress shirt. The temperature was 41 degrees.
When doing the HGN Test, the officer positions Client facing Washington Avenue and passing traffic and his patrol car which has the emergency lights activated. This is direct contradiction to the NHTSA SFST Student Manual, which states "Always face the suspect away from rotating lights, strobe lights, and passing traffic." Because the officer did not observe protocols for administering the HGN, the results were compromised.
During the One Leg Stand Test, Client does as instructed and maintains the instruction position perfectly. During the demonstration the officer instructs Client to keep arms at side throughout the test, but then raises his arms as he demonstrates the test, and the officer exhibits sway while standing on one leg.
When Client performs the One Leg Stand Test I observed a minimal sway, just the same as the officer; I also observed Client raise his arms from his side but his arms are locked out straight as if Client is suffering from the cold rather than trying to maintain balance, and remember the officer raised his arms during the demonstration. Client does put his foot down at the count of four, however the officer interrupted the test by telling Client to look at his foot while counting, and the NHTSA SFST Student Manual states that the officer is not to interrupt subject once the test has begun except to tell subject to continue if subject puts his foot down. Client picks his back foot up and counts to 20, when the officer tells him to stop. I believe Client passed the One Leg Stand because he performed the test as well as the officer performed the test during his demonstration.
When Client performs the Walk and Turn Test the officer places Client in the start position standing on a line with one foot in front of the other, and client does loose his balance but regains his balance and remains in position for several minutes. Client then takes one step to clarify with the officer that he understands the heel to toe part of the instructions, and this is what the officer classifies as "starts to soon". Based on the video, I believe Client passed the Walk and Turn Test because Client exhibited one clue and the manual states that a test subject must exhibit two clues to fail the test.
At the end of the testing Client says "see perfect" and the officer replies "no not quite perfect ...I think you've had just a little too much to drink", the officer then places Client under arrest. The officer's reply would imply that Client did well on the field sobriety testing but not perfect, and that the officer was making a judgment call. But the officer did not demonstrate the tests perfectly, or administer the tests perfectly, or grade the tests perfectly, and no one believes the officer was intoxicated so how could anyone say Client was intoxicated.