State of Texas v. J.S. - Dismissed on February 25, 2010
At 8:30pm on June 15, 2009, Client was in a one car accident on Portsmouth in Houston, Texas, when he backed into a driveway to turn around and struck a tree. Client hit the tree hard enough to break the tree off and high center his car on the stump. The property owner called the police. Property owner told police that Client begged her not to call police and that he had yelled at her and that she was afraid of him. Property owner also told police that Client had voluntarily turned his keys over to her. Property owner described Client as very intoxicated and threatening. The police officer reported a strong odor of alcohol, red/glassy eyes, and slurred speech. The police officer described Client as talkative and agitated. When asked whether he had anything to drink, Client first denied, and then admitted to having drinks several hours earlier with his clients at happy hour. The officer reportedly asked Client to perform Standardized Field Sobriety Tests several times and Client refused all tests. Client also refused to take a Breath Test.
After viewing the video I observed Client to appear completely normal. I observed that Client spoke clearly and precisely throughout the encounter. Client was forming well reasoned and articulate questions which the officer refused to answer. At no point during the encounter did I observe Client to be unsteady while walking, to have trouble balancing, or exhibit any swaying motion. As the encounter continued, Client became more and more agitated by the officer's persistent refusal to justify his request that Client perform Field Sobriety Tests. The officer became frustrated and forcibly put Client in the back of the patrol car.
There were four obstacles to convincing the District Attorney to dismiss Client's case. First, the Assistant District Attorney assigned to the case for trial viewed my client's questioning of the officer as irrational, which she attributed to alcohol. Second, the Client had refused all SFSTs and refused the BAC test. Third, the Client had admitted to drinking. Fourth, Client was in a one car accident.
At trial, Client would have testified that he had been at happy hour with clients where he had three drinks from 4pm until 4:45pm at which time he returned home. Made a few work related calls and took a nap. At approximately 7:30pm Client went to 59 Diner which is approximately four blocks from his house. Client was approximately half way home when he remembered that he was out of cigarettes and was turning around. As Client was backing into the drive way another car was approaching Client from the front at a high rate of speed, and as Client looked over his shoulder he was blinded by the setting sun.
In addition, Client was placed in the back of a patrol car as soon as the police arrived at the accident scene where he remained for an hour. Client's car was towed from the scene and impounded even though Client lived approximately one block from the accident scene, and the police refused to allow the car to be towed to his house. After sitting in the police car for an hour, Client was removed from the car and the hand cuffs were removed and this is when the officer finally requested Client perform the Field Sobriety Tests.
The District Attorney's decision to dismiss was made by a more experienced prosecutor who realized that being cuffed in the back of a patrol car for an hour and having your car was towed and impounded amounted to an arrest, or a seizure of his person under the 4th Amendment. In short the police officers arrested Client before conducting any DWI investigation, so the trial judge would have had no choice but to suppress all evidence in Client's case because he was seized without probable cause to believe that a crime was committed.