Significant decisions by the Courts of Appeal, October 2008

An officer need not observe a suspected intoxicated driver actually drive

In a pair of decisions, the First Court of Appeals in Houston and the Sixth Court of Appeals in Texarkana held that a police officer has reasonable suspicion to detain a driver without having seen that driver exhibit any signs of intoxication based solely on another citizen calling 911 to report an intoxicated driver.

In Villareal v. State, 2008 Tex.App.LEXIS 7230 (Tex.App.--Houston [1st] 2008), the Court held a citizen's tip bearing "sufficient indicia of reliability" is enough for an officer to make a stop according to Terry v. Ohio, 392 US 1 (1968).  In Villareal, Officer Coppedge of the Pasadena Police Department relied upon a call from another driver who reported that Ms. Villareal was drifting and swerving.  The other driver identified himself and Ms. Villareal's car and even informed the police that Ms. Villareal had pulled into a parking lot.  Officer Coppedge detained Ms. Villareal in the parking lot and, based on his observations, placed her under arrest for driving while intoxicated.

In Pospisil v. State, 2008 Tex.App.LEXIS 7564 (Tex.App.--Texarkana, 2008), the Court held that a police officer may rely on information received from another citizen provided that information is can be corroborated by other facts within the officer's knowledge.  The Court further held that a citizen's tip holds greater weight when the reporting citizen description provides a detailed description of the act, is gathered from direct observation and when the citizen puts himself in a position to be held accountable (i.e. provides his name, occupation, address, etc.).  The Court went on further to state that because the citizen was a firefighter that his word was entitled to be trusted. 

Beware the statutory warning

In Bergner v. State, 2008 Tex.App.LEXIS 8268 (Tex.App.--Fort Worth, 2008), the Court held that in order to show that one was coerced into providing a breath specimen, the accused must show that his consent was the result of physical or psychological pressure from the police.  Ms. Bergner was arrested for driving while intoxicated and transported to the station to provide a breath specimen.  After the officer read the statutory warning form (DIC-24), Ms. Bergner decided to blow into the breath test machine.  After the officer left the room, Ms. Bergner used her cell phone to call a friend who advised her not to blow.  When the officer returned, Ms. Bergner asked him what would happen if she refused to blow.  The officer told her she would go to jail.

As a result of her testimony that she consented to the breath test before the officer added the threat of jail for refusing to blow, the Court held that the additional threat of jail was not coercive and upheld the conviction.  (Ms. Bergner blew 0.85 and 0.89.)

Interestingly enough, there was nothing in the Court's opinion regarding possible interference with the intoxilyzer caused by the cell phone and nothing about Ms. Bergner having a cell phone on her person while in custody.

A citizen's refusal to perform field sobriety exercises can be considered a sign of intoxication (So much for the 5th Amendment)

In Sanchez v. State, 2008 Tex.App.LEXIS 7976 (Tex.App.--Houston [14th], 2008), the Court upheld a conviction for driving while intoxicated without any bad driving facts, field sobriety tests or breath test result.  Officer Felton, a five-year veteran, stopped Mr. Sanchez for speeding (22 miles over the speed limit).  After approaching Mr. Sanchez, Officer Felton noticed Mr. Sanchez had an odor of alcohol on his breath and had red, glossy eyes.  Mr. Sanchez also admitted to consuming a couple of beers that evening.  Mr. Sanchez refused to perform any field sobriety tests and also refused to blow into the state's breath test machine or sign the statutory warning form (DIC-24).  The officer testified that he believed Mr. Sanchez had lost the normal use of his mental and physical faculties and was driving in a unsafe manner.  He testified that, in his opinion, Mr. Sanchez was intoxicated.

So, despite the fact that Officer Felton did not observe any of the clues of impaired driving as described in the NHTSA training manual, and despite the fact that Officer Felton did not complete the pre-arrest screening as described in the NHTSA training manual, the Court upheld a conviction based solely upon Officer Felton's opinion that Mr. Sanchez was intoxicated.

No fishing expeditions

Although not a DWI case, Pierce v. State, 2008 Tex.App.LEXIS 6627 (Tex.App.--Dallas, 2008) lays out the proposition that a police officer may not prolong a traffic stop any longer than necessary given the reasonable suspicion for the stop.  Mr. Pierce was stopped by police for speeding.  After speaking with Mr. Pierce and his passenger, Officer Spano became convinced they were carrying contraband.  The officer went back to his patrol car and ran criminal checks on them and then asked Mr. Pierce for permission to search his vehicle.  Upon Mr. Pierce's refusal, Officer Spano called for a canine unit.  A search revealed 38 grams of methamphetamine in the car's console.  Pursuant to a plea agreement, Mr. Pierce appealed his conviction following the trial court's denial of his motion to suppress.

The Dallas Court of Appeals held that Officer Spano did not have reasonable suspicion to believe any crime other than a traffic violation had occurred and that the continued detention was a violation of the Fourth Amendment.