What is DWI?
DWI means to drive or operate a motor vehicle on a public street or highway while not having the normal use of your mental or physical faculties by reason of the introduction of alcohol (or some other drug, or volatile chemical) into the body or having an alcohol concentration of .08 or greater.
It is important to remember that DWI is unlike most other crimes because whether or not you are intoxicated is opinion. The opinion about whether you are intoxicated or not is usually a police officer who knows nothing about you. This officer will not know how tired you are, how you react to tests under stressful conditions, or whether there are medical reasons why you did not perform perfectly on sobriety tests administered to you. Opinions of police officers vary just as opinions of ordinary citizens.
What can I expect a qualified attorney to do on my case?
A qualified attorney should carefully examine the evidence in your case including the videotape (most DWI suspects are videotaped at roadside or at the station or both) so that you can make an intelligent decision about whether or not to take your case to trial.
There are a myriad of issues in DWI cases which only a competent lawyer knowledgeable about DWI law and issues should handle.
What can I expect the issues to be in my DWI trial? Generally speaking, the issue in most DWI trials is whether or not the State can prove beyond a reasonable doubt that you were intoxicated? In some cases, such as accident cases, there may be an issue as to whether or not the State can prove beyond a reasonable doubt that you were driving. Your lawyer, who should have a thorough working knowledge about standard field sobriety tests and how they are administered, should call into question the officers opinion that you were intoxicated.
How does the State attempt to prove that I was intoxicated?
The State will attempt to prove through the testimony of a police officer that you did not have the normal use of your mental and physical faculties and the reason is from the introduction of alcohol (or a drug, volatile chemical or combination there of) into the body. If you took a breath or blood test the State will also try to prove that you had an alcohol concentration of 0.08 or more. In the case of proving that you did not have the normal use of your mental and physical faculties, the State will call a police officer as a witness who will testify that it was his or her opinion that you were intoxicated.
The officer will usually testify that the basis of his or her opinion was based on your performance on certain field sobriety tests administered to you at the scene. What are standard field sobriety tests? There are three (3) tests which the National Highway Traffic Safety Administration has certified as standard field sobriety tests.
1. HGN HGN stands for Horizontal Gaze Nystagmous. This is commonly referred to as the eye test by the ordinary citizen. The officer in that test is looking for an involuntary jerking or twitching of the eyeball. The theory is that the consumption of alcohol causes this involuntary jerking of the eyeball. Many officers trained to administer this test rely heavily on it. Officers attempt to portray this test as an objective test when in reality it is a subjective test.
The so called "jerking of the eyeball" can be very subtle and, just like anything else, subject to interpretation. Furthermore, there are many other things that cause the eyeball to jerk or twitch. The consumption of everyday items such as caffine or nicotine can cause this condition. The physiology of the human eye is very complex and physicians train for years to specialize in the eye. Police officers take a course in HGN which takes a few hours to complete and in which no police officer ever fails. These officers are trained by other police officers and not by doctors or any other eye specialist.
2. The Walk and Turn Test the officer administering the walk and turn test to you is looking for a number of "clues" for intoxication from this test.
The officer is looking for the following ten clues from this test:
1. Subject could NOT balance while listening to the instructions.
2. Subject started the test BEFORE being told to start.
3. Subject stops while walking to steady self.
4. Subject used arms to balance.
5. Subject did NOT touch heel to toe while performing the test.
6. Subject took incorrect number of steps.
7. Subject lost balance while turning or turned improperly.
8. Subject stepped off the line while walking.
9. Subject could NOT perform lest due to level of intoxication.
10. Subject REFUSED to perform the test.
An experienced DWI Attorney can point out the inherent unfairness in this test. For instance, failing to put the heel to the toe counts as a complete fail for that one clue under the ten item checklist. Think about how unfair that is! Any reasonable person can see that one who fails to put the heel to the toe once should not be scored the same as one who fails to do so on every step. Another example is item # 1 where you start the test before being instructed to do so. The officer will usually tell you to stand with the heel of your right or left foot touching the toe of the other foot with your hands at your side. The officer will tell you not to start the test until instructed to do so and then demonstrate the test to you. Sometimes the citizen will take a practice go at it while the officer is demonstrating the test. Well, in your mind are you really starting the test or making a practice run? It does not matter to the officer, you have failed that item on the check list. Any reasonable person can see that it is not fair to penalize somebody for something you did not think you would be penalized for, such as taking a practice run at a test that you have probably never attempted in your life.
Finally, there is nothing normal about standing or walking in this position even under the best of circumstances. It is actually abnormal for people to stand with one foot in front of the other with the heel touching the toe. The absurdity of this whole test is even more apparent when you are asked to do these things on the side of a busy highway or street under stressful conditions when most people are tired and on their way home to bed.
3. One Leg Stand The officer administering the one leg stand test is looking for the following six clues:
1. Subject sways while balancing.
2. Subject used arms for balance.
3. Subject was hopping while performing the test.
4. Subject put foot down _____ times during the test.
5. Subject could NOT perform test due to level of intoxication.
6. Subject REFUSED to perform the test.
This test suffers from the same inherent problems as the walk and turn test. There is nothing normal about standing on one leg with the other leg in the air. The method of grading this test is flawed and unfair.
The Breath Test
Many people assume that the State would not use a machine to measure alcohol concentration that was not both reliable and accurate. However, this could not be further from the truth. First, the manufacturer of this machine does not warrant the machine to be fit for any particular purpose. Second, the manufacturer will not sell the machine to anybody but police agencies. The methodology and scientific principles of any program or machine should not be kept secret. In fact, this is completely contradictory to the principles of science. Legitimate science keeps nothing from public scrutiny to insure that its' theories are both sound and reliable.
What is DWI?