A Tale of Two DUIs

 Posted on October 14,2008 in Uncategorized

1. DUI (in Texas, called DWI) / POM (Possession of Marijuana) charge. Turned wrong way onto one-way street. NT/NA (No Test, No Accident). Field sobriety tests on video with patchy audio administered by rookie APD cop on uneven ground.

The standardized field sobriety tests (FSTs or SFSTs) have three components: Walk-and-Turn, One Leg Stand, and Horizontal Gaze Nystagmus. In this case, W&T-3 (officer claimed 6), OLS-2 (officer claimed 3), HGN-6 (of course). That is, on the video the accused appeared to do three things wrong ("clues") on the Walk-and-Turn and two things wrong on the One Leg Stand.

The officer claimed to have seen more clues than are visible on the video. The results of the horizontal gaze nystagmus test are not visible on the video; only the officer performing the test can see how many "clues" the accused exhibits, so of course an accused always exhibits six clues on the HGN. (I think that's one reason juries aren't impressed by the "pen voodoo" HGN.) A prosecutor watched video and assessed the case as a 60% win for the State.

2. DUI (again, actually DWI, but most people think of it as DUI) charge. Good driving facts - stopped for speeding (which is not a sign of intoxication) and no front license plate. FSTs at scene not recorded on video, which cop says was "not working". Maintenance records for video recorder do not reflect any subsequent repairs to it. At station, accused is steady as a rock, and declines to do the FSTs again, since she did them at the scene.

To me, the second case looks like the better case for the defense. If the first case was a 60% win for the State, the second is maybe 10%, but only if the defense lawyer phones it in and the jury comprises six of the prosecutor's sorority sisters.

Yet the first case worked out for a plea to time served on a non-DUI offense (obstructing a roadway) which has no DPS consequences. The second will go to trial. Why? Not because it's a case that the State considers worth trying, but because it's in a different county - Harris County, in which the DA's office policy is that it's better to lose at trial than reduce a DUI to a non-DUI offense.

With essentially no power to plea-bargain in DUI cases, the misdemeanor prosecutors are trying loser cases. It doesn't cost the individual prosecutors anything - these cases are used as a training ground for baby prosecutors - but they're a waste of everyone else's time. There's also an opportunity cost to the Harris County DA's Office's fixation on DUI cases: it makes it less likely that more important cases will be properly handled.

For this fixation, you can blame MADD. Any time a single-issue interest group like MADD gets to dictate how its pet cause is handled in the criminal justice system, everything else is going to suffer.

[Edit: The second case was ultimately dismissed on the morning of trial.]