The incident re-raises an issue the Statesman tackled last month in a story revealing that Travis County dismisses "a higher percentage of drunken driving cases than other major Texas counties, in part because prosecutors said police filed weak cases." As indicated in the chart at left, law enforcement in Travis County - primarily Austin PD - arrest nearly twice as many people for DWI as other large Texas jurisdictions, and those cases are dismissed from 2-10 times more often than those other locales, raising the possibility that police in Travis County are systematically arresting people for DWI when there's no cause to believe they're drunk.
For years I've heard defense attorneys in Travis County complain that APD will arrest drivers merely if they've been drinking, whether or not they fail field sobriety tests or blow .08 on a breathalyzer, claims corroborated by the Statesman's findings and Ward's experience. An attorney in the May Statesman story voiced that view: "'Generally speaking, I think if you have alcohol on your breath in Austin, Texas, you are going to jail,' said Brian Roark, an Austin defense lawyer and former county prosecutor."
Wherein lies the problem. Drinking and driving, while increasingly a cultural taboo, is not in and of itself a crime. Driving with a blood alcohol content over .08 is a crime, but arresting everyone with alcohol on their breath inevitably ropes in people who've had a drink or two but are still abiding by the law. Folks like Ward may eventually have charges dismissed, but they've often still spent a night in jail, often paid thousands for an attorney, and in Ward's case, suffered needless public embarrassment.
Austin Chief Art Acevedo told the Statesman, "My No. 1 priority is telling my officers, 'Don't you worry about what happens to the court piece, your job is to get people off the road,'" which sounds to me like the department is encouraging a pattern and practice of false arrests systematically from the top down. Surely the "#1 priority" of police in such circumstances shouldn't be "to get people off the road" no matter what, but to determine first and foremost whether they've actually committed a crime.
I wonder how many people who have only had a drink or two end up pleading guilty because they can't afford an attorney and get stuck with a lousy court appointed one (not that there aren't many good court appointed attorneys, but there are some lousy ones).
ReplyDeleteHe's really opening the City of Austin up to a lawsuit for violating a citizen's civil rights. Issuing a statement to encourage police to arrest without probable cause sure could establish a custom, practice, or policy that would warrant a large judgment in federal court!
ReplyDeleteThe Austin police chief has made it clear that he has no use for the constitution. Telling officers not to worry about the court case is basically tell them not to worry about respecting the constitution. If an officer arrest someone who has not committed a crime that is an unreasonable seizure under the fourth amendment. Some of those arrested need to sue and their attorney needs to depose the chief about his statement.
ReplyDeleteUnfortunately, it seems to be the case that many police officers have no need or regard for the constitution. If the people who are in charge, police, prosecutors, and judges have no regard for the constitution....we might as well admit that it is no longer applicable and those who won't stand up for the rights of others shouldn't be the least bit surprised when they lose their own rights.
Why aren't there consequences for the police for wrongly arresting people like this?
ReplyDeleteDon't police in Texas use breathalysers? Here in the UK a preliminary test is carried out with a portable breathalyser, if the person fails the screening test they are then arrested and a further confirmation test is made on on a desk top breathalyser at the police station. Two samples are taken at the station and the lowest reading is taken as the result.
ReplyDeletePaul, most people refuse the roadside breathalyzer. For good reason: They are junk. Actually, a good many refuse the breathalyzer after arrest, also. But you get a driver's license suspension. Still, lawyers usually advise people not to take a breath test.
ReplyDeleteAs a police officer and I am not APD nor do I work in Travis County, I can tell you making a DWI arrest is not easy. We the police are pressured by anti-DWI groups in addition to the terrible alcohol involved crashes we must work and see on a regular basis so most of us want the intoxicated motorist off the road.
ReplyDeleteHowever a growing majority of citizens are refusing roadside field sobriety test and roadside breath test leaving the officer no choice but to arrest. I am not sorry, if I smell the strong odor of an alcoholic beverage coming from a person along with red eyes or a flushed face and they refuse roadside test or a breath test I am going to arrest everytime. I just can't take their word that they are okay and let them go down the road and hurt or kill someone innocent.
If the case gets dismissed so be it I don't care it is out of my hands. If they were under the limit and refused all test because someone told them to, well that is just too bad. It is the fault of the defense lawyers who tell their clients to refuse all tests, leaving the officer no choice but to arrest, there by giving the defense attorney more business.
Just remember DWI investigation is one of the only investigations that requires the suspect to cooperate if they want to prove their sobriety while they have alcohol on their breath.
Now go ahead and flame away. I know call me a stormtrooper but I have seen some bad stuff out there due to drunk drivers.
Well mr. officer... i myself have been wrongfully arrested for dwi,and did beat the case.i took the dwi taskforce officer's field sobriety tests.I was outraged that after preforming well on all the ridiculous things he had me do,he then took his pen out had me follow it with my eyes.Well this makes perfect sense,the dashcam can't see my eyes so then it's left up to the cop to make the call.hmmmm..wonder why that test was made up?To help bring in revenue! When i reached the station they drew my blood wich is a violation of human rights,no person should be allowed to stab another with a needle without consent.If iI did that it would be considered assult with a weapon.Needless to say ..One terrible night in jail,$5,000 attorney fee,and a very unhappy employer later,the so called justice system found out my BAC was .04 and the case was dismissed.So you keep on arresting citizens for crimes we don't commit. MR STORMTROOPER! Remember, this country has revolted before,and the police are America's #1 cause for the next one.Tell me if that shiny badge protects you then.
DeleteI'm gonna have to agree with the anonymous policeman here. And even "a drink or two" impedes your ability to drive. I will not let anyone dear to me get in a car and drive after more than one drink.
ReplyDeletei have to agree. IF they are refusing the test....ARREST! but if they are taking the test and then not reaching the legal limit to be criminal and then being arrested by law enforcment.
ReplyDeleteWell in my book that is an ILLEGAL ARREST and grounds to resist using whatever force is needed.
11:13, I wouldn't take your damn tests stone cold sober. The HGN is junk science and my knees are so bad (one dislocated three times, the other once) I don't think whether or not I can balance on one foot, etc., is particularly probative, either. The 5th Amdt to the US Constitution says it's not my job to provide you evidence against me on demand, sorry. Blaming the defense lawyer is BS: You're the one making false arrests based on (according to you) political pressure and personal bias.
ReplyDeleteHow is it that Travis County is the outlier here? TC citizens are arrested at TWICE the rate as other large TX jurisdictions, so other counties can use more discretion and still enforce the law. Are they just that much better at their jobs than y'all that they can make those finer distinctions?
Besides, aren't there DWI pressure groups in those other cities? Arresting people because of political pressure isn't about improving public safety, it's about just what you said: politics and your personal views, not enforcing the law. If someone is visibly drunk enough to be impaired as you described, you have cause to arrest them. But many, like Jeff Ward, visibly AREN'T impaired and are being arrested anyway.
Petra you may choose not to ride with someone who's had a "drink or two," but that's different from saying they've broken the law when they do so. I understand civilians confusing their own opinions with the law, but cops shouldn't.
BTW, I should add I mostly don't think it's individual officers to blame for this, though clearly the cop at 11:13 admitted he's willing to make arrests based on politics and personal bias. But it's obvious from Acevedo's statements this is a management decision at APD to maximize DWI arrests, whether the driver is visibly impaired or not, just like it's a management decision to expend extra resources trolling for DWIs while understaffing investigations for car and home burglaries and wasting 12% of police calls on false burglar alarms. Managers make choices and the choices made by APD management have resulted in too many false DWI arrests and extremely low clearance rates for car and home burglaries compared to the rest of the state. I don't believe those choices make the puclic safer. There are more productive ways to reduce DWI that don't have the same opportunity costs.
ReplyDeleteGrits, can you provide some evidence that HGN is "junk science"? Not doubting you, necessarily, I'd just like to see what you're basing that on.
ReplyDeleteI work in the system and there is another explanation for TC being an outlier. Juries in TC have a standard of proof higher than anywhere else, so prosecutor know that without SFSTs on tape, or blood or breath, they can't convict. Whereas a jury in Williamson County might convict on the word of the arresting officer, TC juries won't. I'd bet good money that's a major reason.
There is a really big problem with this tactic, and with all zero tolerance programs: while the officer is fiddling with the innocent 1 drink driver, there are hundreds of professional drunk drivers on the streets of their city. These everyday drunks drivers are really good at sliding by, but ever now and the one slips up and kills someone. All the officers are tied up with processing the feel-good, get'em all off the road, not-really drink driver.
ReplyDeleteIt's all a numbers game for the Police Chief to look good, without really making any impact on the real problem. In theory, his plan of arresting zero tolerance, is going to get more folks killed, because precious manpower is waste on the non-drunk, while the pro-drunk is not being looked for.
So juries in TC demand a higher burden to convict is reason for the cops to arrest a twice the rate?
ReplyDeleteNo problem, Grits. In many Texas counties these days, if you get stopped smelling of alcohol and refuse the field sobriety tests (in and of itself legally admissible evidence of intoxication), they'll just get a search warrant for your blood. It's more reliable than the intoxilyzer anyhow and you have to worry about a breath test refusal. Those blood test results are hard to argue with and are just as effective in clearing the innocent as establishing guilt.
ReplyDeleteAnd a judge should be the one that makes the call to violate another human being by puncturing thier skin?Who made them God?Nobody has the right to inflict pain on others!
DeleteI meant "don't have to worry about a breath test refusal."
ReplyDeleteDWI is a serious public safety issue. However, I agree don't take breath test. I also agree HGN is a joke as well as the rest of the SFST. I also think many Texas communities operate as a "police state". If you want to know if the driver is intoxicated, take a blood sample. If you have to get a warrant to take the blood, do it. If you can't find a Judge willing to sign the warrant, then the Judges in that community are lazy. DWI will always be prevalent. Too easy to get a DWI. After all, alcohol, ice, and coolers are virtually always sold at the same place people purchase gasoline. Most bars aren't in walking distance, you have to drive to get there.
ReplyDelete"can you provide some evidence that HGN is 'junk science'?"
ReplyDeleteI based that comment on a discussion at the Texas Forensic Science Seminar last year sponsored by the Court of Criminal Appeals Criminal Justice Integrity Unit, where Dr. Joe Bono, President of the American Academy of Forensic Science said he didn't believe HGN qualified as "science." The tactic supposedly has up to a 40% error rate. A DPS trooper who gave a training on the subject said he thought it was more reliable than that, but granted that many officers who use the technique aren't properly trained and it's often not applied correctly.
I'm the anon who asked about the HGN, thanks for the response.
ReplyDeleteI do have another question for those of you who oppose the tests, the HGN, and think blood draws are a constitutional violation. And, again, this is a serious question, I'm not trying to be argumentative.
If the tests are useless, HGN is junk, and law enforcement can't draw blood with a warrant, do we just not bother trying to catch drunk drivers?
I see a whole lot of criticism but not many solutions being offered. What would you actually do? Or do you think DWI isn't a problem that needs dealing with through criminal penalties?
We have the legal limit so low that it is hard to know what to do if you are pulled over even after a couple of drinks. It is now perfectly legal to text and drive so we will have plenty of accidents for the officer to investigate. We will likely have some statistics on the "texting" accidents because phone records may be able to be retrieved.
ReplyDeleteGetting a warrant to draw blood isn't unconstitutional. It sucks for everyone involved but is not unconstitutional. Its just like if a person is pulled over and refuses to let the officer search the vehicle and the officer goes and gets a warrant. Same thing with blood draw. If person refuses, get a warrant. If Judge refuses to sign warrant, let the driver go.
ReplyDeleteYou know what may help? Eliminating the city's ridiculous restrictions that reduce the number of cabs, reduces the number of people that can ride in a cab, and thereby increase the fares people have to pay. But that would require people in government to admit that their meddling causes unintended consequences that create way more problems than they solve.
ReplyDelete8:32 I don't think anybody said blood draws WITH A WARRANT are a constitutional violation. However, making false arrests doesn't do anything to reduce the problem, either, does it?
ReplyDeleteI have long admonished people that if you get stopped and a cop smells alcohol on your breath (or if you admit you had even one drink) whether you are legally intoxicated or not, you are going to be arrested. There is absolutely no negative consequence whatsoever to an officer for arresting someone who is not intoxicated. It is an outrage, and it happens all the time.
ReplyDeleteIts no big deal to drink and drive. Its no big deal to text while driving. If they drink, text and drive at the same time that might be even better.
ReplyDeleteAnon 11:01, you're quite the one-trick pony, aren't you? We get the same snide, line from you with the same cowardly hiding behind anonymity no matter what the topic. It's hard to imagine you're not as bored with it by now as I am. If you have nothing to contribute to the conversation but a contemptuous sneer, why do you even read this blog?
ReplyDeleteRight on, Scott!
ReplyDeleteThe problem with the HGN is not that the officer saw more clues than were present, but more than likely saw less clues than what was actually there, resulting in the actually clues being counted were less than what the suspect actually displayed. That is were the unreliability is, and as a result, the error is on the side of the offender.
ReplyDeleteThe definition of intoxicated in Texas is two-fold, either having a BAC of 0.08% or higher OR not having normal use of ones normal mental and or physical faculties due to the introduction of any substance into the body.
ReplyDeleteI know an individual that would have a BAC of 0.020, but because she seldom consumes alcohol, she would be clearly intoxicated. She would be what would be called a video drunk due to the lack of normal mental and physical faculties. If she was to be driving, after half of one wine cooler, she would not be able to safely drive and would either end up in a head on crash or would run off the road. She know better than to drink and drive at all, but just because someone is tested below 0.08% BAC does not mean that they are not intoxicated.
Jeff,
ReplyDeleteI am glad that you are not slamming the arresting officer. I don't know how many clues he observed during the HGN test, but I observed the minimum number of clues during both the Walk and Turn and the One Leg Stand test to believe that you were intoxicated. The officer did the job that he is tasked with doing. In fact, where I am at, I believe that our local judge would find enough probable cause to issue a search warrant for a blood specimen and then we would all know what your BAC was at. If it turned out to be well below the primal facial BAC level, then good for you, but the officer was professional throughout the contact and I believe he made the correct decision to place you under arrest for DWI.
I also don't have a problem with the dismissal of the case, because that is the job of the prosecutor to determine if they believe they have enough evidence to convict, which is a higher level of proof required than the probable cause needed to affect a lawful arrest. The video became too stop and go for me to hear and observe the video after the SFST, but the officer did a fine job. I hate that you had to experience it, as I am an avid listener and enjoy your program, but it doesn't change the events of that night.
OK, this is being written WAY after the orignal blog topic, but people here have asked for hard evidence that HGN is junk science. Here's your hard evidence:
ReplyDeleteIt is beyond scientific dispute that HGN (Horizontal Gaze Nystagmus, aka "jerking eyes") can be caused by the ingestion of alcohol. This is as advertised by NHTSA (National Highway Traffic Safety Administration). The problem is that the eyes are TOO sensitive to alcohol - so much so that people exhibit HGN signs at levels less than 0.04 - half of the legal limit.
So anyone stating that HGN "proves" or establishes intoxication is flat wrong. HGN really only proves that a person has consumed "some" alcohol, which is roughly the same information one can gather by smelling the person's breath.
The proof for this is contained in NHTSA's own publications. To see this proof, Google NHTSA, then search the NHTSA site for their "HGN Robustness Study". Then closely review the raw data contained in the Robustness study, especially Tables 10, 13, and 15.
NHTSA instructs police officers nationwide that persons with "4 or more" clues on HGN are intoxicated. And police officers repeat that drivel to jurors. But look at the raw data:
Table 10 shows the results of 36 different HGN tests. 26 of these tests were done on individuals with BAC levels under the 0.08 legal limit. Of those 26 tests, 21people exhibited "4 or more" clues. NHTSA says 4 or more clues means a person is intoxicated. That would be an 81% false arrest rate based upon HGN results.
Table 13 shows 36 more HGN tests. 24 of those were done on people with BACs under the legal limit of 0.08 BAC. Of those 24 tests, 13 exhibited "4 or more" clues. That would be a 54% false arrest rate based upon those HGN results.
Table 15 shows 36 more HGN tests. 27 of these were done on people having BACs under 0.08. Of these 27, 19 had "4 or more" clues. That would be a 70% false arrest rate bsed upon HGN results. (The bottom line of Table 15 contains a typo as to the BAC, which should be less than 0.05, not 0.12, which can be determined if you study the table closely).
Of these 77 HGN tests on people having BACs less than the legal limit, 69% of them - 53 - would be falsely arrested based upon HGN results. NHTSA's own published study shows this to be a fact.
Flipping a coin would only result in a 50% false arrest rate. HGN is a 19 percent LESS accurate than flipping a coin.
The NHTSA Robustness study shows all of the following:
A person at 0.029 having 6 clues
A person at 0.036 having 6 clues
A person at 0.045 having 6 clues
A person at 0.022 having 4 clues
A person at 0.027 having 4 clues
A person at 0.019 having 4 clues
A person at 0.045 having 6 clues
A person at 0.016 having 4 clues
All of these innocent people would be arrested based upon the HGN test, for having "4 or more clues."
Yet NHTSA continues to shovel this junk science down the throats of unsuspecting jurors and motorists.
My conclusion is that law enforcement in general doesn't give a damn about arresting "innocent" (i.e. - drinking, but not intoxicated) drivers, in their never ending quest to get all of the intoxicated drivers off the roadways.
In Vietnam, it was nearly impossible to distinguish the good Vietnamese from the bad Vietnamese. They all looked the same. The frustrated military came up with an answer: "Shoot 'em all, let God sort 'em out..."