DWI Corner
September-October 2008

Boating while intoxicated

Calvin Grogan

Assistant County and District Attorney in Lamar County

Bill Harris

Assistant County and District Attorney in Lamar County

An intoxicated driver of any type of motor vehicle—including a boat or jet ski—puts the public in danger. Boating While Intoxicated might not be the sexiest (or most common) case, but with the additional factors of a fluid surface and the danger of drowning mixed in, it deserves attention.

On June 10, 2007, Robert James Wilson was arrested in Lamar County for BWI while operating a jet ski and was indicted the same month. His criminal history extended back to the mid-1970s with convictions for attempted sexual assault and assorted alcohol-related offenses. Multiple misdemeanor DWI convictions in the 1980s finally led to his first felony DWI in Dallas County in 1991. Between 1991 and 2001, he was convicted of four alcohol-related felonies including a TDCJ sentence for BWI in 2001.

Because of his numerous felony convictions, Wilson was enhanced as a habitual offender. We also alleged that the manner and means in which he operated the jet ski made it a deadly weapon. Prior to trial we offered a 25-year sentence (which he declined). Based on his refusal to accept the minimum punishment (as enhanced), we set the case for trial.

From the beginning we knew the only contested issue was going to be intoxication—and our evidence on that issue was not as strong as we would have liked. We had an admission of consumption, failed HGN, failed SFSTs, and very questionable behavior, but Wilson refused to give a breath sample at the time of arrest. And to stack it further in his favor, he behaved normally on the intoxilyzer room video, answered questions appropriately and without hesitation, and did not exhibit any of the classic signs of intoxication.

We recognized jury selection was going to be crucial in this case. We did a standard voir dire on intoxication, asking whether any of the panelists would require scientific evidence of intoxication. We identified a handful of jurors who told us they would need a breath or blood test to convict, and we subsequently struck them for cause. We also questioned the jury panel on the concept of “masking”—that is, that experienced drinkers can hide their intoxication but still be legally intoxicated—which they readily recognized and accepted. We felt masking was going to be an important issue in light of the defendant’s performance on the intoxilyzer tape.

We outlined the differences between DWI and BWI and explained how such a crime, ordinarily a misdemeanor, could be enhanced to a felony with prior convictions. One of the potential jurors was a young man on misdemeanor DWI probation. He answered many of our questions appropriately. He readily admitted his guilt, saying he made a “mistake” and was doing well on probation. Considering the masking and lack of scientific evidence issues, we felt leaving him on the jury might be a good thing as he could impart his own experience with drinking to his fellow jurors.

The indictment was read, including the jurisdictional enhancement paragraphs, and the jury heard Wilson had prior felony DWI convictions from Dallas and Denton Counties. We had obtained a written stipulation from the defendant that exactly paralleled our jurisdictional allegations. Had he refused to so stipulate, we were prepared with a TDCJ pen pack reflecting these convictions. We had to rely on these felony convictions because we were unable to get copies of the ancient misdemeanor judgments and sentences with sufficient identifying information (i.e., fingerprints) linking them to Wilson.

First contact with the defendant

When the trial commenced, the State’s first witness was Texas Parks and Wildlife game warden Bryan Callahan. Callahan testified he initially observed Wilson operating his jet ski in an erratic manner, weaving in and out of buoys designating a no-wake zone. At Pat Mayse Lake north of Paris, the no-wake zone is located immediately adjacent to a roped off swimming area for families and children. This factor would later become important on the deadly weapon special issue.

The first thing Callahan noticed upon making contact with Wilson was that he smelled strongly of alcohol. During the initial encounter, Wilson admitted to drinking four beers over a six-hour span. Callahan conducted a battery of non-standardized field sobriety tests on the water. Game wardens are instructed to perform these simple tests to determine whether there is sufficient evidence to conduct a further investigation utilizing the familiar standard field sobriety tests (SFSTs). These “on the water” tests include reciting the alphabet and two divided attention tests (finger count and hand-palm touches). Wilson passed the alphabet test but failed the divided attention tests. (Unfortunately, game wardens on Pat Mayse Lake are not equipped with video equipment in their boats so none of this testing was shown to the jury.) As a result, Callahan instructed Wilson to follow him to shore so further field sobriety testing could be administered.

Instead of complying, Wilson opted to open the throttle on his jet ski and raced a quarter mile across the lake toward a densely wooded shoreline. After reaching speeds in excess of 40 miles an hour, Wilson beached his jet ski and fled into the woods. After a brief foot chase, Callahan captured Wilson and placed him in handcuffs. Callahan told the jury Wilson was restrained due to safety concerns (Callahan was alone in a forest with a man who just attempted to elude him).

The game warden then escorted Wilson to a nearby level parking lot to finish his intoxication investigation. (Callahan testified he had not decided if Wilson was intoxicated and, more importantly, was therefore not subject to custodial interrogation.) For obvious reasons, it is impractical to administer SFSTs on the water. Furthermore, game wardens are instructed to allow 15 minutes of observation before administering SFSTs on land after removing a subject from the water. This time allows the suspect to regain his equilibrium.

Callahan testified that Wilson failed all of the SFSTs. More specifically, he exhibited four of eight clues on the walk-and-turn test and two of four clues on the one-leg stand test. While these might have meant he technically failed the tests, it was not the most compelling evidence of intoxication.

Instead of stressing the number of clues present on each test, we focused Callahan’s questioning on the importance of administering divided attention tests to intoxication suspects. Callahan told the jury these tests were a very helpful tool in his investigations and that they were a reliable predictor of whether someone was capable of operating a watercraft. Because one of the SFST clues observed was losing balance, Callahan emphasized how important balance is when operating a jet ski. He also told the jury that, based on his personal experience, alcohol causes slower reaction times and increases risky behavior.

Fortunately (and to our great surprise), game wardens are trained and certified in HGN administration. According to Callahan, Wilson exhibited four of six clues on the HGN test. It was the only scientific evidence we could present and, notwithstanding their answers to the contrary, we knew jurors wanted objective scientific evidence on the intoxication issue. We had to make sure Callahan could make a cogent, persuasive HGN presentation.

In preparing for trial we learned Callahan had never testified in a criminal trial despite being a game warden for more than 10 years. With this in mind, we set aside an afternoon to prepare him. He was very interested and cooperative in developing his HGN testimony. We spent a few hours going over the testimony in detail and making sure he had done the test correctly, finding out what clues he was looking for, and ascertaining he understood the basics of HGN testimony. Callahan did an outstanding job on the stand and no doubt the jury found his HGN testimony persuasive.

According to Callahan, it was at this point of the investigation that Wilson became belligerent and used profanity toward him and another game warden, Darla Barr, who had arrived to assist. Callahan told the jury this behavior was an additional indicator of intoxication. Callahan said he did not believe Wilson had consumed only four beers that day and that in his opinion Wilson had lost the normal use of his physical and mental faculties and was intoxicated. Warden Barr also testified Wilson was intoxicated based on her observation over a 30- to 40-minute period. This testimony put defense counsel on the horns of a dilemma, as it was Barr who had previously arrested Wilson for BWI in 2001 and had stopped him many other times for BWI over the years. Her previous encounters with the defendant were admissible after we asked Wilson on cross why he had used foul language toward Barr, and he replied that it was because of their “past run-ins.” That response opened the door for us to ask about those past run-ins. Defense counsel’s cross examination of Barr was minimal, and he never challenged her opinion of his client’s intoxication.

Cross-examination and defense claims

On cross-examination of Callahan, the defendant’s speed on the jet ski became a contested issue. Counsel repeatedly asked if a lesser horsepower (hp) personal watercraft was capable of reaching speeds in excess of 40 mph. He phrased his questions on the horsepower issue to insinuate it wasn’t an offense to operate a personal watercraft of less than 50 hp while intoxicated, even asking Callahan point-blank if that were true. We strenuously objected to this line of questioning. We were initially a bit confused about this horsepower issue, but over a break we determined that, pursuant to §724.002 of the Transportation Code, a person refusing to provide a breath specimen is not subject to losing his driver’s license if operating a personal watercraft equipped with a rated horsepower of less than 50 hp. It is similar to the 180-day driver’s license subspension for refusing to submit a breath specimen when a person is arrested for DWI, except this consequence applies to personal watercraft and BWI. It was a red herring in the midst of this trial because it is an administrative penalty, not a criminal one.

Defense counsel introduced a copy of the jet ski title listing the horsepower at 26.2, which, according to Wilson’s attorney, meant he couldn’t be guilty of BWI. We felt obliged to call a rebuttal witness to explain how a personal watercraft’s horsepower is rated. According to our expert, there are two ways to rate horsepower: at the motor or at the pump. The horsepower is always lower “at the pump” because the personal watercraft has to channel water through its intake before it comes out the rear, which is where horsepower is measured “at the pump.”

Our expert, Shane Kienast, who happened to have done repair work on Wilson’s particular jet ski, told the jury it was actually capable of 85 hp “at the motor,” which meant it could reach speeds of 50 mph on open water. We reminded the jury in closing argument that even though this issue was irrelevant, we proved the horsepower on this personal watercraft was greater than 50 hp.

The intoxilyzer room

Normally, a trip to the intoxilyzer room is not time-consuming. However, Pat Mayse Lake is about 20 miles from the intoxilyzer room at the Lamar County Sheriff’s Office near downtown Paris. The time between Callahan’s initial encounter with Wilson and their arrival at the sheriff’s office was more than an hour. Wilson looked normal on the intoxilyzer room video, having had over an hour to sober up. Defense counsel used the video to portray his client as someone who had not lost the normal use of his mental and physical faculties, as he was standing upright and asking intelligent questions.

We called DPS Trooper Greg Wilson (no relation to the defendant) to testify. Trooper Wilson, a certified intoxilyzer operator, had met the defendant and Callahan at the jail to assist with the investigation. Trooper Wilson testified about the physical clues of intoxication he observed that night in the intoxilyzer room (odor of alcohol and glassy eyes), but more importantly he described in detail the masking principle to the jury. Wilson explained that many times experienced drinkers can appear normal on video, especially when they have time to sober up. Trooper Wilson frequently testifies in DWI trials in Lamar County and is a very personable witness who quickly builds a positive rapport with juries.

Ultimately, defendant Wilson did not provide a breath specimen and refused to perform additional SFSTs on camera. Just as in DWI cases, there is a mandatory statutory warning that must be read to BWI suspects before asking for a breath specimen. We introduced Wilson’s DIC-24 form into evidence. We used both refusals in closing argument to remind the jury what Wilson was hiding from them and that his refusals could be used as evidence of guilt.

Verdict and punishment

During closing arguments the jury was reminded Wilson operated his jet ski erratically near small children swimming in the lake. We reminded the jury of Callahan’s testimony: that it was difficult to stop a personal watercraft because there are no brakes and that a driver’s reaction time needed to be sharp. Finally, we argued that a subject who cannot maintain his balance was very likely to fall off the personal watercraft at some point with no ability to prevent it from going near the children. The jury deliberated for just eight minutes before returning a guilty verdict with a deadly weapon finding.  

Prior to trial, Wilson elected to have the judge assess his punishment in the event of conviction. He pled true to each of the punishment enhancement paragraphs and did not object to several other judgments and sentences reflecting drug and weapons convictions. Some of the jurors who remained for the sentencing phase were shocked to hear his criminal record. They seemed to be comforted by this information after their quick verdict—and comfortable (as we were) with District Judge Scott McDowell’s sentence: 35 years. ✤

Editor’s note:  Shortly after his conviction and sentencing, Robert Wilson passed away after hanging himself in his jail cell.