DWI Corner
May-June 2008

An unanswered question from the DWI Summit

W. Clay Abbott

TDCAA DWI Resource Prosecutor

First, let me thank people too numerous to list by name for the great effort at making our DWI Summit, Guarding Texas Roadways, such a success. Thanks to all of the support from our executive director, Rob Kepple, and others at TDCAA, great faculty who were so generous with their time and talent, tremendous expertise from the folks at Anheuser-Busch Companies, and support from local hosts in 32 cities. The summit went great due to your above-the-call support. What a tremendous opportunity to provide assistance in these most difficult cases to over 1,030 prosecutors and officers from every part of the state!

Next I will gear up to go back on the road for follow-up training in those cities that didn’t have satellite access for the summit’s broadcast. If you are interested in a local program this summer, watch TDCAA’s website (www.tdcaa .com) this June for an application form. We plan to incorporate the best parts of the summit into our regular training.

Countering drivers’ excuses

One of the questions that kept surfacing during that satellite training, both in news stories and in my e-mail in-box, was: “What can we do with a defendant’s silly explanation at trial for various signs of intoxication?” While every case demands an individualized response, I have some solid suggestions for officers and prosecutors to nullify these last-minute trial explanations. (My apologies in advance that this article is mainly aimed at police officers. Prosecutors, if your officers need to know this info, copy this column and pass it out. Better yet, build your own officer training around it. If we prosecutors are not getting the following valuable evidence in our DWI cases, we should be sure our officers know we need it.)

The best counter to a defendant’s explanation for her bad driving (lately, cell phone conversations or texting is a popular explanation) is officers’ solid questioning at the scene of the initial traffic stop. Often officers are afraid to ask drivers to explain their actions, but that is a serious misstep. Fear that the offender will have an excuse for a traffic violation, nystagmus, lack of mental abilities, lack of physical coordination, and the refusal to take a breath test is misplaced. The roadside stop is the exact place for such questioning! At the traffic stop, a driver doesn’t have time to concoct a believable story, but you can bet that after several months with capable defense counsel, the defendant will have a halfway reasonable explanation for every clue the officer notes in the police report and video. (I know it may come as a shock that defendants might lie or that defense counsel could suggest through cross-examination alternatives to impairment.) The best time to get to the truth is when the defendant is most likely to tell the truth, and if not the truth, then at least the most ineffective lie.

Conduct ‘Mom’s sobriety tests’

Remember that all jurors had mothers, just like yours, who conducted their own field sobriety tests when those jurors came home as teenagers, just like your own mom did. My mother made me wake her up and give her a hug; then she asked me silly questions about my night, all while smelling my breath for alcohol, scanning for bloodshot eyes, and checking my ability to converse with all of my faculties. Mom’s sobriety tests, while not as well researched, tested, and verified as the SFSTs, are far better accepted by and understandable to the average juror. So before officers on the stand ever get to SFSTs, they must fully explain that they conducted Mom’s sobriety tests on the defendant too. This is where DWI cases are won. While defense counsel will always put officers on trial for their execution of SFSTs, the defendant is the focus of Mom’s sobriety tests. As a note to prosecutors, don’t forget how important an officer’s initial observations are during jury selection. And officers, nothing in a DWI investigation is as important as this first contact and conversation you have with the defendant. Don’t rush it. Spend as much energy developing this set of skills and techniques as you do any other.

When an officer stops a vehicle for poor driving performance or a traffic violation, he must ask the driver to explain why she committed the violation or dangerous behavior. The question should be conversational, not accusatory—it should provide a fair opportunity to explain. The officer should confirm or rebut this excuse with his own observations. Later (after arrest) it is also very helpful to broach the issue again; it is amazing how easy it is for the suspect to remember the truth and how hard to remember a lie. Keep in mind that the jury should and does expect the officer’s investigation to be fair, and his ability to explain why he pulled the defendant over is the very essence of fairness. Will the defendant lie? Perhaps—but ask yourself whether the lie at the scene will be better or worse than the one crafted for trial. The explanation the defendant gives on the roadside can be investigated, but it can’t once it is made in court. Ask to see the dropped soda, cigarette burn, cell phone, or whatever the defendant says took her attention away from the road and caused the bad driving.

Three possible responses

The defendant has only three responses to an officer’s request for an explanation. First, she can deny what the officer saw. Such a response is not a problem in court—the officer should win this battle of credibility. And denying the officer’s observations also suggests that the defendant is unaware of her dangerous driving behavior. What better evidence of impairment?

Secondly, she can admit the behavior with an explanation. This response is certainly not a disaster for the prosecution—the defendant just admitted to the probable cause for the stop. Prosecutors dream of this kind of evidence in a suppression hearing.

Finally, the well-coached and experienced drunk driver can invoke her right to silence. Such is her right; so be it. Jurors will still view the officer as very fair and concerned that the truth comes out, which is a better result than if the officer had never asked the question.

Remember too that the officer’s questions are documented on video. His observations are now locked into our main piece of evidence along with the defendant’s unrehearsed and probably most frank explanation. This documentation helps the officer put essential details in his reports and recall details at trial, which is very valuable. Officers and prosecutors are doomed to fail if they are, or appear to be, afraid of the truth.

“Why” questions

The officer should also ask “why” questions during the SFST performance. For example, an officer observing HGN should ask, “Have you ever been diagnosed with any eye problems?” Again, every defendant ever tried for DWI has “natural nystagmus”—just listen to any defense cross-examination. Investigate if a driver claims eye trouble at the scene: Who is her doctor, when did the eye injury happen, what treatment is she receiving, etc. Again, a suspect’s initial excuse will not be as believable as the one defense counsel makes after discovery or on cross when the defendant sits silently, cloaked in the 5th Amendment.

All suspects on the roadside want one thing more than anything in the universe:  They want to go home, not to jail. Most will avail themselves of every opportunity to talk their way out of an arrest. If in answering these “why” questions, they establish legitimate explanations for their bad driving (other than intoxication), the officer can make the right call and let them go. Being open to such options makes the officer much more credible.

But never forget that one of the stages of intoxication (right between “I should sing in public” and “Dang! My clothes are too hot”) is “I can outsmart this officer.” Some offenders have learned the hard way that they can not outsmart officers when caught driving while impaired—they might still retain the ability to remain silent as well as the right to remain silent. In such a total-refusal case, I have one other suggestion: Turn the in-car video camera around during the drive to jail. Don’t ask questions, just let the camera observe the suspect in the cruiser’s backseat. Video-taping your own driving is of limited utility (although after viewing hundreds if not thousands of DWI videos, I could find my way from anywhere in Lubbock County to the jail). What your camera records during the drive has the best chance of bringing something admissible to the prosecutor. Is the defendant sleeping? Nice touch. Ranting? Even better! Praying? My personal favorite.

All of these questions should be asked before the officer finishes his roadside investigation and makes an arrest decision. That being the case, the defendant is not in custody. Because she cannot be the target of custodial interrogation when not in custody, the defendant’s statements should be admissible without Miranda warnings or waiving her rights. These techniques must be applied as early as possible in the investigation and as completely as the stop will allow.

Finally, after the DIC-24 is read, the defendant refuses a breath test, and the defendant is Mirandized and waives her rights, ask her why she does not want to take a breath test. I bet very few can cite as many creative but idiotic reasons for refusing the test as a DWI attorney can. Far more clever defense counsel are worried about flesh-eating bacteria on sealed Intoxilyzer mouthpieces than intoxicated suspects are. Silence also works here. No impaired suspect will ever wax as eloquently as a defense attorney on voir dire or as a well-coached defendant on the stand.

Prosecutors, make sure that all of this information gets in front of the jury on direct. It will drain the effectiveness of those defense-favorite “isn’t it possible” questions on cross. D

Editor’s note: For more in-depth coverage of interrogation techniques, see chapter 2 of  TDCAA’s excellent Confessions book, written by Denton County Assistant Criminal DA John Stride and Collin County Assistant Criminal DA John Rolater.