DWI- Opinion Crime

I had a DWI bench trial yesterday. It was a total refusal. My client completely refused to perform any of of the field sobriety testing or blow into the intoxilyzer 5000. Not guilty.

The problem with DWI refusal cases is that DWI is largely an opinion crime. In the officer’s opinion you have lost the normal use of your physical or mental faculties. Combine huge amounts of law enforcement discretion with the Witch Hunt mentality of DWI prosecution and you have a recipe for injustice.

The officer stated that my client’s only indications of intoxication were; drum roll please……. speeding, part of one tire crossing the center line, my client admitted to drinking 1-2 beers, and the 3 usual suspects in DWI- bloodshot eyes, slurred speech, and the odor of alcohol. That’s it. Arrested, Charged, and Tried based on that alone.

Every DWI I have ever seen involved “bloodshot eyes, slurred speech, and the odor of alcohol.” I used to wonder why.

3 reasons-
1. Those are impossible to disprove in court. The camera can not see the defendants eyes on tape. Slurred speech is an opinion. And we have yet learned to capture odors on the in dash camera.

2. NHTSA training. Officers are trained to look for these among dozens of others signs of intoxication.

3. Police Reports- Most DWI reports have easy to check boxes for DWI clues, they all include those 3 reasons.

Back to number 2- We train officers to look for many clues of intoxication. The NTHSA manual lists dozens. Unfortunately if a defendat shows only 3-4 out of 50 clues, the cop can make the decision to arrest. That’s what discretion gets you.

Why? Because DWI is an opinion crime.

To compare, it could never be an officer’s subjective opinion alone that you killed somone, possessed drugs, started a fire, robbed a bank; the officer would need some actual objective tangible objective evidence to arrest you.

DWI, being an opinion crime, requires no objective evidence for you to get arrested. Throw in a DA’s office that prosecutes ALL DWI cases and you will have innocent people convicted.

Labels: DWI, Police

<img src="http://www.blogge says:

July 12, 2007 at 5:45 am

is it your experience that the local prosecutors _want_ to prosecute DWIs? obviously, it’s political suicide to build up a record of being “soft” on drunk driving arrests. I wonder what would happen if a DAs office started abusing the cops who pulled in weak DWI arrests, ie if someone passed a breathalizer.Maybe I’m a fascist pig, but I don’t see it as an unreasonable search to pull over someone who is speeding and not staying in their lane. Having done that, if the police officer asks and the suspect admits to having been drinking, it seems legit for the officer to ask the person to take a breath test. Refusing such a test under those circumstances would be cause for arrest. In the case of your client, the not guilty still seems like it’s a victory for the state. Even if you win, it clearly sucks to get arrested and hauled into court.

July 12, 2007 at 6:33 am

Not staying in a lane- I should explain that better, one of his tires crossed over the line.Speeding- Who doesn’t speed. The officer admitted that the vast majority of people who commit those offenses are not drunk.As for prosecutors- Most do not like prosecuting dog cases. They only do it because they have to.

<img src="http://www.blogger.c says:

July 12, 2007 at 7:01 am

I couldn’t agree more. I actually tell juries this from the outset. I use some of the other crimes you listed for comparison purposes. Tarrant County is one of those counties that simply prosecutes all DWI cases; regardless of the facts. I’ve had the misdemeanor chief deny a dismissal or reduction on a case involving a guy who had been shot in the head twice before and simply couldn’t stand well on two legs, much less one. I’ve had a guy charged and tried after he was hit by a train! I kid you not. DWI…it’s all about the money for the State!

July 12, 2007 at 7:41 am

In your state, is it required of a motorist to submit to a breathalizer if there is just cause? Here in maryland, I think, such a refusal would be accepted as evidence in a DUI case as consciousness of guilt.

July 13, 2007 at 1:30 pm

In Texas a specimen request must be preceded by “probable cause” that you were DWI.Basically the cop needs a legit reason to pull you over, and a few signs of DWI.We have ALR hearings to argue over this but it is a low standard.

July 13, 2007 at 4:03 pm

Colin, you can refuse a breath test. why would it be reasonable not to be able to, what with the 4th and 5th amendements and all. At least what’s left of them after a few years of the “drug war” and the terror war. The refusal can be presented as evidence in court, but as you have seen here, a good lawyer can shoot holes in that all day. The breathalyzer 5000 is notoriously inaccurate, for one thing. IWTS’s client probaby did lose his license for awhile under ALR. It just bothers me a little that you think refusing a breath test should be cause for arrest all by itself.

July 20, 2007 at 8:59 am

Would it not be better to say, after being stopped and detained by the police,when the officer asks you to do a field sobriety test…”I withhold answering that until I have had time to consult with my attorney!”Seems to me that you are neither refusing or agreeing to a test. Merely wanting to protect your rights with an attorney present…

July 21, 2007 at 4:05 pm

Tom G,You can say that to the police. However, you will still be arrested and in Texas you will have “refused” a valid request for a breath test.In court, the prosecutor will argue that you refused because you knew you were drunk.