Legislature to consider new drunk driving offense

Last month I wrote about Austin Police Chief Art Acevedo's brilliant scheme to put more motorists under the thumb of the criminal (in)justice system. I also pointed out the intellectual dishonesty behind the proposed driving while ability impaired offense. But, come January, the Texas Legislature will consider creating the criminal offense of driving while ability impaired.

"When people are arrested for an alcohol-related offense, it needs to show up on their record," said Austin PD Commander of Highway Enforcement Jason Dusterhoft. "Our No. 1 goal is to keep drunk drivers off the road and keep them from killing people. DWAI would be a way for us to work toward eliminating repeat offenders.

No, Mr. Dusterhoft, I must disagree. If the motorist did not commit an offense, then the arrest shouldn't show on their record. Mr. Dusterhoft apparently believes that the police are never wrong when it comes to arresting motorists for allegedly driving drunk.

If you read the NHTSA training manual you will find that if a motorist exhibits four or more "clues" on the pen-and-eye test there is an almost 80% chance that the motorist has an alcohol concentration of .08 or higher. Of course that means that almost 20% of the time the voodoo test is wrong.

NHTSA claims the walk and turn exercise is accurate in predicting an alcohol concentration of .08 or higher 68% of the time and that the one leg stand gets it right 65% of the time. By my math, that means the coordination exercises are wrong about one time in three.

But here's the rub for folks like Mr. Acevedo and Mr. Dusterhoft; what happens if an officer arrests a motorist based on his performance of the roadside coordination exercises and the motorists proceeds to blow less than .08 on the breath test machine?

Might it mean that the officer was wrong in arresting the motorist? Might it mean that NHTSA's coordination exercises aren't accurate predictors of one's alcohol concentration?

Seeing might just be believing

Earlier this month, police in Clarence, NY pulled over Michael Bartz for driving 59 mph in a 45 mph zone. That Mr. Bartz was speeding wasn't newsworthy. Blowing a .30 on the state's breath test machine, on the other hand, was.

The newspaper article states that a 160 lb. man would have to consume 11 alcoholic drinks in an hour to reach a .30. My Alcopro Drink Wheel tells me that it would take 13 drinks to achieve that blood alcohol concentration. Either way, that's a lot of alcohol in a short amount of time.

According to the Phoenix House's "Facts on Tap" website, these are the effects and behaviors you would expect to see at various blood alcohol concentrations:

BAL .02%-.03%: You feel mildly relaxed and maybe a little lightheaded. Your inhibitions are slightly loosened, and whatever mood you were in before you started drinking may be mildly intensified.

BAL .05%-.06%: You feel warm and relaxed. If you're the shy type when you're sober, you lose your feelings of shyness. Your behavior may become exaggerated, making you talk louder or faster or act bolder than usual. Emotions are intensified, so your good moods are better and your bad moods are worse. You may also feel a mild sense of euphoria.

BAL .08%-.09%: You believe you're functioning better than you actually are. At this level, you may start to slur your speech. Your sense of balance is probably off, and your motor skills are starting to become impaired. Your ability to see and hear clearly is diminished. Your judgment is being affected, so it's difficult for you to decide whether or not to continue drinking. Your ability to evaluate sexual situations is impaired. Students may jokingly refer to this state of mind as beer goggles,but this BAL can have serious repercussions. See the pages on Sex and Alcohol: A Risky Relationship for how to protect yourself.

BAL .10%-.12%: At this level, you feel euphoric, but you lack coordination and balance. Your motor skills are markedly impaired, as are your judgment and memory. You probably don't remember how many drinks you've had. Your emotions are exaggerated, and some people become loud, aggressive, or belligerent. If you're a guy, you may have trouble getting an erection when your BAL is this high.

BAL .14%-.17%: Your euphoric feelings may give way to unpleasant feelings. You have difficulty talking, walking, or even standing. Your judgment and perception are severely impaired. You may become more aggressive, and there is an increased risk of accidentally injuring yourself or others. This is the point when you may experience a blackout.

BAL .20%: You feel confused, dazed, or otherwise disoriented. You need help to stand up or walk. If you hurt yourself at this point, you probably won't realize it because you won't feel pain. If you are aware you've injured yourself, chances are you won't do anything about it. At this point you may experience nausea and/or start vomiting (keep in mind that for some people, a lower blood alcohol level than .20% may cause vomiting). Your gag reflex is impaired, so you could choke if you do throw up. Since blackouts are likely at this level, you may not remember any of this.

BAL .25%: All mental, physical, and sensory functions are severely impaired. You're emotionally numb. There's an increased risk of asphyxiation from choking on vomit and of seriously injuring yourself by falling or other accidents.

BAL .30%: You're in a stupor. You have little comprehension of where you are. You may suddenly pass out at this point and be difficult to awaken. (But don't kid yourself: Passing out can also occur at lower BALs. But, at lower blood alcohol levels, you may decide You've had enough to drink and go "pass out." With an alarming BAL like .30%, your body will be deciding to pass out for you.) In February 1996, an 18-year-old student died of alcohol poisoning with a BAL of .31% after attending two parties the night before.

So, according to research conducted by the Phoenix House, Mr. Bartz should not have been able to operate a motor vehicle at that blood alcohol concentration. Could the state's breath test machine have been wrong? Did Mr. Bartz' blood alcohol concentration increase after he was stopped? If he had been drinking while driving, did the alcohol in his mouth affect the test result?

Dr. Kurt Dubowski, considered by many to be an expert in the field of alcohol testing, put together this chart showing the effects of alcohol on the body at various concentrations:

BAC (g/100 ml of blood or g/210 l of breath)	Stage	Clinical symptoms
0.01 - 0.05	Subclinical	Behavior nearly normal by ordinary observation
0.03 - 0.12	Euphoria	Mild euphoria, sociability, talkitiveness Increased self-confidence; decreased inhibitions Diminution of attention, judgment and control Beginning of sensory-motor impairment Loss of efficiency in finer performance tests
0.09 - 0.25	Excitement	Emotional instability; loss of critical judgment Impairment of perception, memory and comprehension Decreased sensitory response; increased reaction time Reduced visual acuity; peripheral vision and glare recovery Sensory-motor incoordination; impaired balance Drowsiness
0.18 - 0.30	Confusion	Disorientation, mental confusion; dizziness Exaggerated emotional states Disturbances of vision and of perception of color, form, motion and dimensions Increased pain threshold Increased muscular incoordination; staggering gait; slurred speech Apathy, lethargy
0.25 - 0.40	Stupor	General inertia; approaching loss of motor functions Markedly decreased response to stimuli Marked muscular incoordination; inability to stand or walk Vomiting; incontinence Impaired consciousness; sleep or stupor
0.35 - 0.50	Coma	Complete unconsciousness Depressed or abolished reflexes Subnormal body temperature Incontinence Impairment of circulation and respiration Possible death
0.45 +	Death	Death from respiratory arrest

The National Highway Traffic Safety Administration (NHTSA) includes a chart entitled "Common Signs of Alcohol Influence" is its DWI Detection and Standardized Field Sobriety Testing training manual -- the book that most law enforcement agencies use to train their officers in the administration and evaluation of police coordination exercises.

Here are the effects and behaviors at various blood alcohol concentrations per NHTSA:

.03 Slowed reactions

.05 Increased risk taking

.08 Impaired vision

.10 Poor coordination

Once again there are questions about the accuracy of Mr. Bartz' breath test. While the article notes that Mr. Bartz failed the coordination exercises administered by the police (that's a big surprise), it also states that officers found nothing out of the ordinary until they conducted the breath test.

A high breath test may be grounds for some attorneys to recommend an immediate plea because they see no way to win the case. It can also be an opportunity to turn the state's evidence and witnesses against the state and use them to your advantage.

Jumping to conclusions, DWI-style

According to the NHTSA training manual used to teach police officers how to administer and interpret standardized field sobriety tests, the decision to arrest a citizen for driving while intoxicated should be based upon a totality of the circumstances.

The NHTSA manual breaks an encounter into three steps or phases.  Phase I is observing the vehicle in motion.  Officers are to look for traffic code violations, equipment violations or unsafe driving.  If he observes any of these then he has reasonable suspicion to stop the driver and moves to the next phase.

Phase II is the initial observation of the driver.  Officers are taught to rely on their senses to determine if there is probable cause to suspect the driver is intoxicated.  Officers look for signs of intoxication: bloodshot or glassy eyes, fumbling for paperwork and trouble maintaining balance. They use their sense of smell to detect the odor of an alcoholic beverage.  The officer listens for slurred or thick speech, for admissions of alcohol consumption or for drivers who have trouble answering questions.  If the officer detects any of these he moves to the final phase.

Phase III is pre-arrest screening.  In Phase III, the officer administers and interprets a series of field sobriety tests, what I prefer to call police coordination exercises.  The officer may also ask the driver to blow into a portable breath test machine.  

Only after all three phases have been completed has the officer gathered enough evidence to make an arrest decision.

But, as those of us who litigate these matters are well aware, the decision to arrest tends to be made upon the smell of an alcoholic beverage and a driver's admission that he has been drinking. How else to explain an arrest when the driver refuses to perform the coordination exercises -- or when the driver performs well on them?

An effective method of attacking a DWI arrest is to challenge the objectivity of the arresting officer -- in other words, to demonstrate that the arresting officer made up his mind to arrest the driver before he had a chance to observe all available clues and signs.

If you've been charged with driving while intoxicated, contact my office.

 

Loss of normal use...

According to the DWI statute in Texas, the state can prove a citizen is intoxicated in one of three ways:

1. Loss of the normal use of one's mental faculties due to the introduction of
alcohol, a drug, a controlled substance, or a combination thereof, into the
body;
2. Loss of the normal use of one's physical faculties due to the introduction of alcohol, a drug, a controlled substance, or a combination thereof, into the body; or
3. Having an alcohol concentration of .08 or higher.

There are two training manuals that are a must have for any lawyer who practices DWI defense in Texas - DWI Detection and Standardized Field Sobriety Testing (published by NHTSA) and the Texas Breath Alcohol Testing Program Operator Manual (published by the Texas Department of Public Safety).

Both of these manuals may be used to impeach the state's witnesses on the subject of "loss of normal use." A criminal defense attorney who knows what he's doing can cross-examine the state's witnesses with these manuals through the "learned treatise" exception to the hearsay rule.

According to the breath test manual, "[i]t is not the alcohol in the peripheral areas of the body which impairs a person's coordination, but the alcohol concentration in the CNS (central nervous system) tissue." This seems to indicate that it's not the concentration of alcohol in a person's breath that is critical -- it's the concentration of alcohol in a person's central nervous system (brain, brain stem and spinal cord) that is critical.

The breath test manual goes on to state that "[t]he first effect of alcohol is the impairment of judgment." That's because "[a]lcohol affects the brain in reverse order of how the brain develops." In other words, the higher level brain functions, such as judgment, logic and reason are affected before the lower level brain functions, such as breathing and digestion. According to the breath test manual, "[p]sychomotor skills are motor actions (physical faculties) proceeding directly from mental activity."

The NHTSA manual states that alcohol "doesn't affect a person until it gets into their central nervous system, i.e. the brain, brain stem and spinal cord."

This is important because the manuals the state uses to train its experts tell us that alcohol affects one's mental faculties before it affect's one's physical faculties. Thus, evidence indicating the citizen accused had the use of his mental faculties at the time of driving can be used to refute the state's argument that if a person performs poorly on the police coordination exercises, he must be intoxicated.

Now when you ask the arresting officer or the state's breath test expert whether alcohol affects one's mental or physical faculties first, and he tells the jury alcohol affects them both equally, you can pull out your manuals and read the training material that contradicts his "expert" testimony. But in order to do that, you have to know what's in those manuals.

If you're defending citizens accused of DWI, and you don't want to commit malpractice, you need to get those manuals ASAP.