State of Texas v. M.G. - Dismissed on May 12, 2010
Client was leaving a work function at a local bar just before mid-night on February 25, 2010, when he was stopped for speeding, traveling 45mph when restricted to 30mph on Travis Street in Houston, Texas. The police officer observed an odor of alcohol, red/blood shot eyes, and slurred speech. When asked whether he had anything to drink, the Client admitted to two drinks. 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 that Client swayed and dropped his foot. On the Walk and Turn Test the officer observed the following 3 clues: failed to maintain the start position, used arms for balance, and missed heel to toe on steps 3 & 4.
After viewing the video I observed that Client spoke clearly and precisely throughout the encounter. I also observed Client to stand perfectly still during the HGN Test. On the One Leg Stand Test I observed that Client to stand perfectly still and slowly count to 30 before dropping his foot, although Client did not count to 30 in the instructed fashion, i.e. one-thousand one, one-thousand two, one-thousand three... On the Walk and Turn Test I observed Client to step out the start position twice but then he held position throughout the instructions, Client walks perfectly down the line, turns perfectly, and walks perfectly back down the line. Client did raise his arms slightly while walking, but per the manual a subject is allowed to raise his arms not more than six inches from his sides before he can be penalized for using his arms for balance.
The police officer then read Client the Implied Consent Warning while in hand-cuffs at the scene of the traffic stop rather than at the police station where the Intoxylizer is located. Client refused the Breath Test.
However, even more damning to the State's case then the timing of the implied consent and the location of the refusal of the BAC, and Client's videotaped performance of the SFSTs, was the fact that as Client's hands were being cuffed, Client asked the officer where the tow truck was taking his car. This is because his car was being picked up at the same time as Client was being cuffed. This means that the police officer had called the tow truck before doing the Field Sobriety Tests with Client. In short the police officer's arrest decision was based on a traffic violation for speeding and my Client's admission to having had two drinks, which falls very short of giving the police officer probable cause to believe Client was Driving While Intoxicated. In terms of the 4th Amendment to the U.S. Constitution, Client's person was seized before there was probable cause to believe that a crime had been committed.