The offense of speeding often serves as the basis for a traffic stop that later ripens into an arrest for DWI. In such instances, law enforcement usually employs RADAR technology to justify a stop for speeding, often courtesy of a “radar gun”. RADAR stands for radio detection and ranging; speed is measured by assessing the change in frequency of reflected radio waves.  RADAR makes use of a scientific principle-the “Doppler Effect”-the change in frequency of reflected radio or sound waves as an object moves toward or away from one’s location. The timeworn example of the “Doppler Effect” is the changing pitch of a train whistle as it moves down the track. Utilizing “Doppler", the velocity of an object is then directly proportional to the change in frequency of the reflected wave. Texas courts have long approved of RADAR as a reliable method for measuring the speed of a vehicle.

A second technology-LIDAR, is also commonly employed to justify stops for speeding. LIDAR stands for Light Detection and Ranging. LIDAR utilizes light waves emitted with a laser device to precisely measure distance. The simple calculation of distance traveled (of the light reflected off a traveling object) divided by time of travel equals the object’s speed. Unlike RADAR, Texas courts curiously have not yet endorsed the technology as reliable. According to the Waco Court of Appeals, “there are no Texas authorities confirming the reliability or admissibility of LIDAR technology.” Hall v. State, 264 S.W.3d 346 (Tex. App.-Waco 2008). To fulfill the trial court’s role as “gatekeeper” of the admissibility of evidence, a reliability determination of some sort must first be made before evidence, such as LIDAR, is admissible in a criminal case.  In Texas, Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) must be followed.

In Hall v. State, 297 S.W.3d 294 (Tex. Crim. App.-2009) the Court of Criminal Appeals upheld the Waco Court of Appeals determination that the state’s failure to proffer any evidence of the reliability of LIDAR evidence rendered a stop for speeding illegal in a DWI prosecution. The Court left undecided how much evidence of reliability would be required before LIDAR would be admissible in a pretrial setting.

Until such time as Texas courts acknowledge the reliability of LIDAR, a probable cause challenge might prevail if insufficient evidence exists as to reliability of the technology.






Investigative Detentions

How much information do the police need before a citizen can lawfully be detained for DWI or for any other crime—reasonable suspicion. The standard originates with a landmark 1968 Supreme Court case-Terry v. Ohio, 392 US 1 (1968).  This question can be important to someone arrested for DWI because the charge will likely get thrown out, if, at a minimum, reasonable suspicion for the initial stop did not exist.

In legalese, a temporary investigative detention is justified when the detaining officer has “specific articulable facts which, taken together with rational inferences from those facts lead the officer to conclude that the person detained is, has been, or soon will been engaged in criminal activity”. This is something more than a hunch and less than probable cause. Texas courts require specific facts pointing toward a crime rather than mere conclusions. The quote below states the law on this point.

“Without specific, articulable facts, a court has no means in assessing whether this opinion was objectively reasonable”.  Ford v. State, 158 SW 3d 488 - Tex. Court of Criminal Appeals 2005.

Typically in a DWI case, the arresting officer personally observes the “bad driving” which justifies the stop. A myriad of possibilities exist to justify a stop-erratic or unsafe driving of all sorts. 

Frequently, however, the information or tip justifying the stop comes from a person other than a police officer-what the courts term, “the citizen-informant” or “citizen witness”. For example, a fellow driver calls 911 to report you for suspicion of DWI due to unsafe weaving or driving recklessly. A stop based upon a tip from someone identified by the police satisfies the Fourth Amendment because the tip is deemed to carry sufficient "indicia of reliability". In the DWI context, the “tipster” stops and identifies himself to the police or gives his name and contact information to the police dispatcher. The courts consider the tip to possess enough information to allow the officer to conclude that the caller-in is credible.

When the police detain someone on the basis of an anonymous tip, however, they must corroborate the tip. Corroboration means the police confirm enough facts to conclude that the information provided is reliable and a detention is justified.

To recap: stops to investigate, OK when reasonable suspicion to investigate; OK when information for the stop comes from an “informant” known to be credible; OK when information comes from an anonymous “informant” when the “tip” is corroborated by the police officer.

DWI by Alcohol and its Synergistic Effect with Another Substance

Last week I wrote a post on the kind of evidence needed in a DWI by drug case. There's another related situation worth mentioning-when the driver consumes a substance (be it an over-the-counter medication or a controlled substance) that makes him more susceptible to the effects of alcohol. This is referred to as the "synergistic effect" of alcohol and a consumed substance or drug. In such a case, the prosecutor can argue that despite a breath test result below the legal limit, the driver was nevertheless intoxicated because a consumed substance made him more prone to the effects of alcohol.

Many clients find this a startling revelation-the idea that you can blow under the legal limit and yet still be convicted of DWI by alcohol. The reason of course, lies in the fact that along with a .08 breath test score, Texas law defines intoxication as the loss of normal use of physical or mental faculties. Alcohol and some other substance, the argument goes, has enhanced the effect of the alcohol resulting in intoxication. Texas courts consider a person found guilty of DWI by reason of the "synergistic effect" to be intoxicated exclusively as a result of alcohol. 

The "synergistic effect" theory differs, however, from a claim that alcohol combined with a drug or substance caused intoxication. This fine distinction used to matter before the Texas Court of Criminal Appeals changed its mind about what constitutes the "elements of the offense" of DWI. That's getting pretty technical and I mention it simply to make you aware of the "synergistic effect" theory of prosecution.

Can the prosecutor make the same type of argument about a bodily condition that has weakened you and increased the effects of the alcohol-say for example, fatigue? The "synergistic effect" theory does not apply to fatigue, or any other purely natural deterioration of the body. "Synergistic effect" applies to alcohol and its interaction solely with substances.

As is the case with DWI "by drugs", the prosecutor needs expert testimony to establish the synergistic effect of alcohol and a substance, though no Texas case explicitly says so. The logic of the Smithart decision (discussed in last week's post) readily applies.

So if alcohol and some other substance are involved in your case, watch out-just because you've got a breath test result under the legal limit doesn't get you off the hook if an argument can be made that something you took-an antihistamine, a prescribed muscle relaxant, etc. made you more susceptible to the effects of alcohol.

DWI by Drugs

Occasionally I've had a DWI case where the client has taken a breath test and blown 0.00 or significantly under the legal limit of .08 indicating a complete absence of or little alcohol in the person's system.  Despite the lack of evidence of alcoholic intoxication an arrest is made due to the officer's belief that the person is intoxicated from drugs, either "recreational" or prescribed. Even though the prosecution is not required to prove the specific intoxicant involved, proof must exist of the loss of normal use of physical or mental faculties "by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body." The "average" police officer may not, however, possess the expertise necessary to testify that a person is intoxicated from drugs.

According to Smithhart v. State, 503 S.W.2d 283,286 (Tex. Crim. App.-1973), a 1973 decision of the Texas Court of Criminal Appeals, expert opinion is needed to establish that a person is intoxicated from drugs in a DWI by drug case.

The rationale is that intoxication by alcohol is of such common occurrence that its recognition requires no expertise.  When a person is under the influence of drugs, expert testimony must connect that person's symptoms to a conclusion that he or she was under the influence of a drug and was incapable of safely operating a vehicle.

Enter the "DRE", the drug recognition expert, the creation of the LAPD-a police officer trained to recognize impairment in drivers under the influence of drugs, other than or in addition to alcohol. DRE's utilize a 12-step protocol to check for impairment by drugs. The examination takes about 45 minutes and is similar to a medical exam (minus the doc).

No DRE in your DWI arrest? Can you still be convicted of DWI by drugs? It depends upon what creeps into the record. Statements by the driver admitting to drug use coupled with the arresting officer's observations and a toxicologist's testimony about potential impairment from the consumed drug could certainly do it. My conclusion-I'd pay extra special attention to any DWI case involving drugs where no DRE participated.

Deferred Adjudication for DWI

I couldn't tell from the highly flattering front page photo in the Statesman of Rep. Todd Smith (Texas House District 92) whether he was old enough to remember the last time persons charged with driving while intoxicated were eligible to receive deferred adjudication.  The Legislature did away with it on January 1, 1984.  My recollection is that the powers that be figured out that DWI was too serious to let some avoid a conviction.  Deferred adjudication (not "deferred ajudification", which seems to have infected the lexicon) is a provision whereby the judge finds sufficient evidence of guilt but withholds finding the defendant "guilty". The case is ultimately ordered "dismissed" upon successful completion of the deferred adjudication.

Well times certainly have changed haven't they. Now, MADD likes it. John Bradley, the influential Williamson County DA is in favor of it along with the Statesman's editorial board. What up with that? According to the Statesman's Claudia Grisales, it looks like the bill  will pass. How did we get from here to there and back again? Expediency.

122,000 pending DWI's statewide. A jury trial for each one of them? That won't happen. They'd be trying DWI's until sometime in 2020. So dust off the deferred adjudication provision in the Code of Criminal Procedure. This won't make a dent in the backlog. For one thing, deferred adjudication boasts a non-existent benefit of not counting as a conviction. However, everyone knows you've been arrested for DWI; you cannot expunge a deferred adjudication. Dollars to donuts the non-disclosure law will not apply to DWI. (I wrote this before I actually read the proposed applicable provision of the non-disclosure law; sure enough no non-disclosure for DWI's).

So with deferred adjudication on the books for DWI I'm going to tell my clients, "It's not technically a conviction. However, it's still on your record, you won't be able to expunge it. You won't be able to get an order of non-disclosure. Your employer will be able to see it along with anyone else". Well that sounds attractive doesn't it?

You want to make some inroad upon the number of pending DWI's. Do what a number of counties do informally. Use pretrial diversion-a contractual agreement between the defendant and the prosecution that results in a dismissal. The defendant completes counseling, community service and other specified conditions and his case gets dismissed. I've never turned one down. And if you're worried about the almighty precious criminal record, make the defendant agree not to pursue an expunction. I think that's a disincentive but I still think it will reduce the caseload. You could trust your prosecutors to use it as needed. On the other hand if you're convinced that DWI is the worst offense in the Texas Penal Code you could increase the number of courts and prosecutors. You could put your money where your mouth is instead of rejiggering the system with a worn out provision that, I predict, will be scrapped because it didn't do what the proponents expected.