The Secrets of Field Sobriety Tests

Law Offices of Tim Powers

940.483.8000

Have you been drinking tonight, sir? Oh. Crap. If you’re in a car, that’s not a question you want to hear from a man in uniform. And if the answer is yes, you’re in for the worst pop quiz of your life: the field sobriety test.

Look, you should not drive drunk. Ever. No, seriously, not ever. The goal of this piece is not to show you how to beat a field sobriety test—in most cases, no amount of preparation can help you anyway. But you know what? They make for one hell of a drinking game. Try ‘em out for yourself—from the comfort and jail-free safety of you own home. May the best drunk win!

The Big Three

The National Highway Traffic Safety Administration has established three tests as the Standardized Field Sobriety Test. You may find a rogue officer who throws something else at you, but because the standardized tests are mostly likely to hold up in court, these are the ones you’ll probably encounter.

The Horizontal Gaze Nystagmus (HGN) Test.

You’ve seen this test in movies and public service announcements. It’s the one where the officer has you watch a moving a pen or a flashlight. Nystagmus is an involuntary shaking of the eyes that usually only occurs at the extremes of your periphery. But when a person is intoxicated, it can occur at less steep angles.

So the officer will have your eyes follow the object, slowly, back and forth. He or she will be watching for jerkiness in the way your eyes track the object, looking for that telltale shake when they’re off at the sides. If nystagmus occurs within 45 degrees of center, you could be in trouble. A person without nystagmus should be able to follow the object smoothly, and when they look at a still object at 45 degrees, they should be able to do so steadily.

If you failed this test, you likely have a blood-alcohol content (BAC) of 0.08 or greater. The NHTSA estimates this test to be 88-percent accurate. But here’s the thing: There are literally hundreds of known causes of nystagmus, most of which have nothing to do with intoxication. Some people’s eyes just behave that way, which must be rather inconvenient for sober people at a DUI check.

The Walk-and-Turn (WAT) Test

You’ve probably seen this one, too. The cop tells you to "walk the line," taking nine heel-to-toe steps, while looking down and counting out loud. At nine steps, you pivot on one foot, turn around, and walk nine heel-to-toe steps back. You have to keep your hands at your sides, your eyes down, and you can’t stop, waver, or really screw it up at all.

This is what’s known as a "divided attention" test. The striatum, a part of the brain linked to multitasking, is compromised when someone drinks to excess. The effect is severe when the attention span is divided between mental and physical tests. The NHTSA website says the officer is looking for eight signs of impairment. You’re in trouble if you:

• cannot keep balance while listening to the instructions
• begin before the instructions are finished
• stop while walking to regain balance
• do not touch heel-to-toe
• step off the line
• use your arms to balance
• make an improper turn
• take an incorrect number of steps

There are a lot of things to remember here. That’s the idea—in addition checking your balance, the officer is looking at how accurately you can follow instructions. Alcohol has a serious impact on the hippocampus—the part of the brain associated with the creation of new memories. It’s hard to follow multiple instructions if you’re having a hard time remembering what they are. The NHTSA claims the Walk-and-Turn test is 79 percent accurate.

The One-Leg Stand (OLS) Test

Like the Walk-and-Turn test this is a divided attention test that also checks to make sure you won’t fall flat on your face. You are instructed to stand with one foot about six inches off the ground, and count aloud by one-thousands until you’re told to lower your foot. The officer times you for 30 seconds. He or she will look for four main indicators of intoxication: Swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down. It is 83 percent accurate.

Combined, the NHTSA claims that those three tests are 91 percent accurate. There are a few other less common tests folks may encounter instead.

The Rhomberg Balance test

For this one, you are asked to stand up straight, close your eyes, tilt your head back, and silently estimate the time it takes for 30 seconds to elapse. You’ll be inspected for an inability to stand steadily, eyelid tremors, the need to peek to maintain balance, muscle tension, and any odd statements you may make. (That’s true for all of these tests). The officer is also testing your internal clock’s accuracy. It will be slow if you’re drunk, and sped up if you’re on stimulants. If you’ve smoked pot, 30 seconds might seem like a half hour.

Finger to Nose

This test requires you to place your feet together, standing straight, with your eyes closed. Upon the officer’s order, bring your index finger to your nose. This is a balance test. Alcohol is well-known to affect one’s equilibrium. The officer is looking for body sway, body tremors, eyelid tremors, muscle tension, or the big tell—missing your own nose—as well as any statements made by the accused to support a finding of intoxication.

Finger Tap Test

Also known as the Finger Counting Test. In this exam, the officer directs you to hold out one hand, palm up, and touch the tip of each finger to the tip of your thumb. You are told to count out loud after each tap, forward and backward, for three consecutive sets. You can flunk it if:

• You start the test too soon.
• You can’t count as directed.
• You don’t touch your fingers to your thumbs.
• You perform the wrong number of sets.
• You stop the test before you’re told to do so.
• You just can’t follow the instructions, period.

Miscellaneous Evaluations

There are even more uncommon field sobriety tests you may encounter. These include: Hand clapping, counting backwards, reciting the alphabet forwards or backwards (a notorious test that isn’t all that easy even when sober). There’s also this one, from The Man With Two Brains. Very difficult.

While any of these tests may have scientific, neurological implications, it’s important to note that the evaluation of these is entirely subjective. If the cop thinks you’re drunk, under circumstances that would normally lead to an arrest in that part of the world, you’ll go to jail. It will be his word against yours. You can refuse to take these tests (as well as a BAC-measuring breathalyzer test), but that will typically result in your arrest and likely a suspended driver’s license. Don’t drink and drive.

You and your friends could turn these tests into a sort of drinking game. You may already have your own unofficial tests—tell us!

Otherwise, enjoy your nystagmus responsibly. 

If you are seeking aggressive criminal representation by an experienced criminal defense attorney for your Denton County DWI  case case or arrest in Denton County, contact the offices of Tim Powers today.  There is no charge or obligation for the initial consultation.              940.483.8000      .

 *Tim Powers is an attorney licensed to practice law by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific legal question you should directly consult an attorney."

Justice Ruth Bader Ginsburg emphasized her disapproval by reading her dissent in the courtroom, saying the court was shielding a city and its prosecutors from "flagrant" misconduct that nearly cost an innocent man his life.

"John Thompson spent 14 years isolated on death row before the truth came to light," she said. He was innocent of the crimes that sent him to prison and prosecutors had "dishonored" their obligation to present the true facts to the jury, she said.

In the past, the high court has absolved trial prosecutors from any and all liability for the cases they bring to court. The key issue in the case of Connick vs. John Thompson was whether the district attorney could be held liable for a pattern of wrongdoing in his office and for his failure to see to it that his prosecutors followed the law.

In 1999, when all his appeals had failed on his conviction for the murder of a hotel executive, Thompson was scheduled to be put to death. But a private investigator hired by his lawyer found a blood test in the police lab that showed the man wanted for a related carjacking had type B blood, while Thompson’s was type O.

Thompson had been charged with and convicted of an attempted carjacking near the Superdome as a prelude to charging him with the unsolved murder of a hotel executive.

The newly revealed blood test spared Thompson’s life, and a judge ordered a new trial on the murder charge that had sent him to death row. His new defense lawyers found other evidence that had been hidden, including eyewitnesses reports. Bystanders reported seeing a man who was 6 feet tall with close-cropped hair running away holding a gun. Thompson was 5 feet 8 and had a bushy Afro.

With the new eyewitness reports and other evidence that pointed to another man as the killer, Thompson was quickly acquitted of all the charges in a second trial. He won $14 million in damages in a civil suit against the district attorney.

In rejecting the judgment, Justice Thomas described the case as a "single incident" in which mistakes were made. He said Thompson did not prove a pattern of similar violations that would justify holding the city’s government liable for the wrongdoing. Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Samuel A. Alito Jr. joined to form the majority.

However, Thompson’s lawyers showed that at least four prosecutors knew about the hidden blood test. They also showed evidence of other, similar cases in New Orleans in which key evidence was concealed from defense lawyers.

If you are seeking aggressive criminal representation by an experienced criminal defense attorney for your Denton County case case or arrest in Denton County, contact the offices of Tim Powers today.  There is no charge or obligation for the initial consultation.  940.483.8000.

 *Tim Powers is an attorney licensed to practice law by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific legal question you should directly consult an attorney."

A majority of justices said secretly placing the device and monitoring the man’s movements for several weeks constituted a government "search" and therefore the man’s constitutional rights were violated.

Four other justices also concluded the search was improper, but said it was because the monthlong monitoring violated the suspect’s expectation of privacy.

That difference of legal analysis may create further confusion among law enforcement over when and for how long such high-tech operations can be used, on both criminal suspects and the general public.

At issue was whether movement in a private vehicle on city streets is "public" in nature.

Growing sophistication of electronic devices to monitor the movements of suspects made this issue ripe for review, since lower courts had disagreed on when such surveillance is permissible without a warrant.

The devices send an electronic signal to a satellite, allowing real-time plotting of someone’s whereabouts.

Antoine Jones was a co-owner of Levels, a Washington nightclub when he was suspected of trafficking cocaine on the side. A joint FBI-D.C. police team covertly attached a GPS device to his Jeep outside the terms of a warrant.

A warrant had been granted, but installation of the GPS device was authorized by a judge only within 10 days and only in the District of Columbia. Agents waited until the 11th day to secretly place it on the vehicle, and did so in neighboring Maryland. Jones was then monitored for 28 days as he drove around the area.

He was eventually tracked to a house, where law enforcement officers discovered nearly 100 kilograms of the illegal narcotic, along with about $850,000 in cash. Jones was later sentenced to life in prison.

The court was being asked to decide whether such covert surveillance violated the Fourth Amendment and whether in this case it should be considered a "search," a "seizure," or both.

The justices agreed police violated Jones’ rights, but disagreed on just why.

The Constitution’s Fourth Amendment says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

Antonin Scalia wrote for a five-vote majority that a person’s property is legally sacred, and the government had to justify placing a GPS device on the vehicle. Scalia said the electronic age does not change a centuries-old concept.

"The government physically occupied private property for the purpose of obtaining information," said the ruling. "We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted."

Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor agreed with the conclusions.

But a group of four justices led by Samuel Alito concluded the majority’s reasoning was "artificial," and did not address larger legal concerns of searches in the digital age, including GPS. He said the court should have used this case to clarify the limits police monitoring of wireless personal communication devices like mobile phones and Internet use.

"The availability and use of these and other devices will continue to shape the average person’s expectations about the privacy of his or her daily movements," Alito wrote. "In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative."

But the U.S. Congress and most states have not kept up with the times, Alito said, leaving courts to sort out what level of privacy a citizen can expect.

He said in this case, four weeks of tracking was more than enough to justify police getting a search warrant.

Alito was backed by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan.

The justices have another pending case they may decide to tackle, from an Oregon inmate who faced similar circumstances. Police there had attached a GPS device to Juan Pineda-Moreno’s car while it was parked on his property. Officers then tracked him to a remote marijuana field he was cultivating. He was convicted and sentenced to more than four years behind bars.

Unlike Jones, a federal appeals court in San Francisco ruled this was not a "search" so no warrant was required to place the device on Pineda-Moreno’s Jeep Cherokee. His conviction was upheld.

The justices have not yet taken any action on the Oregon appeal, perhaps waiting to resolve the issue with Jones’ appeal from Washington.

The current case is U.S. v. Jones (10-1259).

The amended text of Penal Code 49.04 reads:

(d) If it is shown on the trial of an offense under this section that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0/15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.

So now if you were facing a regular DWI the punishment range was 72 hrs in jail – 180 days in jail, or a term of probation not to exceed 2 years.  The new DWI +.15 punishment range is 0 days in jail – 1 year in jail, and a term of probation not to exceed 2 years.

MADD pushed hard for this, and our legislators folded as usual.  But here’s the funny part….

This new crime will decrease the amount of convictions, and decrease the punishment for offenders!

What???

Here’s why — first of all, no first time offenders go to jail on a DWI 1st.  Therefore, since the length of probation is the same, the underlying jail sentence doesn’t change anything.  If someone were to go to jail on a DWI 1st, it most certainly wouldn’t be for a length over 6 months anyway.  

Decrease In Punishment Step ONE

Less people would be inclined to provide a breath or blood test. This is the same effect that the surcharges have had on poeple arrested for DWI.  If you do not give a breath or blood test, you cannot be charged with this "higher" level crime — so why do it?  Refuse, Refuse, Refuse ! !

Decrease in Punishment, Step TWO

This actually LOWERS the minimum sentence for DWI.  Before, the minimum was 72 hrs in jail up to 180 days.  With this new law, the range is 0 days in jail, up to 1 year in jail.  Therefore, a prosecutor can give a $1 fine, and 0 days in jail. 

So there you go.  The new "tougher" crime effectively lowers the punishment range and decreases the chances of a conviction for the state.  Congratulations MADD.  You win again.

If you are seeking aggressive criminal representation by an experienced criminal defense attorney for your Denton County DWI case case or arrest in Denton County, contact the offices of Tim Powers today.  There is no charge or obligation for the initial consultation.  940.483.8000.

 *Tim Powers is an attorney licensed to practice law by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific legal question you should directly consult an attorney."

    WHAT IF I’M STOPPED FOR DWI?  WHAT SHOULD I DO ?

1. Think first, use common sense, and be open minded !

          First, don’t drink alcohol or use drugs and then drive!  No one likes drunk drivers as they are clearly a danger to themselves and others.  No sane person would be happy to be on the receiving end of a 3,500 pound projectile being piloted by an intoxicated person. 

          Second, recognize that police officers perform a very difficult and dangerous job, and that we all owe the good officers an extreme debt of gratitude for their efforts.  However, it should be remembered that police officers have a great deal of discretion in deciding to arrest a person.  Here, it is appropriate to note that experience has proved, time and time again, that a person’s lack of manners and overt rudeness is the quickest way to being handcuffed and placed in the back seat of a patrol car.  You should also recognize the reality that DWI, for purposes of an officer making an arrest, is strictly his opinion that the crime has been committed.  Like all jobs that human beings perform, there will be some officers that are better at it than others.  Accordingly, police are not only subject to making human mistakes, but also, to unconscious psychological influences which almost always gravitate toward guilt.

          It must also be noted that police work is very competitive, and as a result, officers like to win their cases.  Here, too, experience has shown that more than a few officers have misrepresented facts and told falsehoods to win their case.  One should keep an open mind as to the possibility of other motivations of the officer than simply that the driver was intoxicated in determining the reason for a DWI arrest.  For example, recent evidence has demonstrated that most officers who make numerous traffic and DWI arrests actually receive increased pay as a result of their subsequent court appearances for those arrests.  Indeed, in some cases the officer, in addition to receiving benefits of a private patrol car for his use only, and having his days off and work hours fixed, receives an amount of extra money equal to his regular pay for court appearances, i.e., his salary doubles.

2. What do I do if the officer signals me to stop by turning on his emergency lights ?

          Drive to the right lane as cautiously and quickly as possible, and continue there until you can either safely park on the shoulder of the road or in a parking lot.  Next, take your vehicle out of gear, shut off the engine and radio, and turn on your emergency flashers. Such quick and cautious actions on your part will indicate that your normal mental faculties are not impaired.  In addition, if the officer just wants to pass your vehicle, then your actions will allow him to do that in a safe manner.

3. Having drawn the black bean by being stopped, should I get out of the car ?

          Yes!  However, attempt to keep your hands visible and do not make quick movements.  Do not place your hands in your pockets.  Exit your car and walk to the right rear of your vehicle and wait for the officer.  Do not lean on your vehicle or stand between it and the police car.  Here, it must be understood that the officer does not know you or your intentions yet.  This is an extremely critical time for him, as he will be looking for a possible weapon you may have or for any threat to his safety that you may present. Recognizing the officer’s initial apprehension and the ease at which it may be lessened, you can establish an initial positive contact with him, rather than a negative one.  

4. Is there anything I should do before getting out of my vehicle ?

          Yes, take your driver’s license and proof of insurance card out of your wallet and bring them with you to give to the officer.  These two items will usually be the first things he will ask to see.  If you were to hand your wallet to the officer, with the license and insurance card in it, he would not take it for fear of being accused of removing money or something else of value.  Accordingly, since he would then ask you to remove the license and insurance card from it, you should do that before leaving your vehicle. These actions will demonstrate your cooperation and will lessen the officer’s fear factor as your hands will always be visible to him.  These actions will also evidence that you have not lost the normal use of your mental faculties, as the actions were both reasonable and prudent.

5. If asked, should I admit to drinking an alcoholic beverage?

          This is a tough question but the answer is generally "yes".  Since you will likely have an odor of an alcoholic beverage on your breath, it makes no sense to deny that you have had a drink.  In fact, with the odor of an alcoholic beverage present and you making a denial, it is only human nature for the officer to find that you are less than credible.  This fact to the officer would then likely give rise to a suspicion that you are trying to hide the fact that many drinks were consumed.

6. Do I admit to how many, where and when?  Is honesty the best policy ?

          It depends.  Any admission more than "two" will likely result in your arrest. This is especially true where the officer fails to ask "when?" because, for example, 4 beers is much different than 4 beers over eight hours.

          As to the second and third questions, it is not whether you tell the truth or fudge on the truth that is important.  Rather, the answer really lies in whether or not you tell the truth or don’t answer at all.  In this regard, the truth has resulted in many non-intoxicated drivers being arrested, and has subsequently cost them a small fortune for bond, automobile towing, time off from work and an attorney to prove their innocence.

7. If I’m not going to answer, what do I do ?

          Keep in mind that both our Federal and State Constitutions guarantee that you do not have to incriminate yourself.  Politely ask the officer why he stopped you and if you are presently under arrest.  Under our law a person can be under arrest and yet not be told so.

          Where the officer indicates that you are under arrest then you should immediately inform him of your desire to have an attorney present for any further questions.  Do not refuse or agree to perform police field sobriety exercises.  Rather, tell the officer you want advice from a lawyer to help you decide if you will refuse or agree to perform them.

          On the other hand, should the officer say you are not under arrest, then a different approach is in order.  Politely ask:  "Am I going to be written a traffic ticket?" And if so, "Will I be free to leave upon your completion of it?"  Where the officer says:  "Yes" to both questions, count your blessings, remain still and non threatening.  Be courteous and only speak when spoken to – never volunteer information as that will only serve to prolong your roadside stay.  Should he again ask about alcohol consumption, inform him of your choice not to answer any questions but those related to the specific traffic offense — and, stick to your right not to incriminate yourself.

          Well, what about a scenario where the officer says:  "You’re not under arrest, but you can not leave".  This is close to the typical DWI scenario.  Here, the safe thing to do is to inform the officer that you would prefer not to answer any more questions and would like to have a lawyer present.  Be polite and not talkative!  Doing this, you have in effect "punted the ball" to the officer.  He must now choose to let you go or to prolong his investigation.  Again, if he lets you go, count your blessings and drive safely.  Where he prolongs your roadside stay, he must be careful not to violate your federal and state constitutional rights to not be unreasonably seized.  The invocation of your rights to remain silent and to an attorney’s presence will make it more difficult for the officer to avoid violating your constitutional right to not be unreasonably seized.

          To further explain, a police officer, absent any belief that criminal activity is afoot, has a right to walk up to any person in a public place and talk to them.  However, the person may simply walk away.  Indeed, our law is clear that the person’s action in walking away cannot be used as evidence that he is guilty of something, i.e., that the invocation of a constitutional right cannot be equated to guilt.  In such cases where the officer, through use of his police status, either impliedly or expressly detains the person, he violates the individual’s right not to be unreasonably seized.

          To lawfully justify a brief detention of a person, the officer must have a specific and articulate reasonable suspicion that the person is presently involved in criminal activity. This justification cannot be legally made on the basis of a simple hunch or a gut feeling. The detention must be narrowly limited in both its duration and scope so as to allow the officer to maintain the status quo so that he may dispel or affirm his reasonable suspicions.  If the officer waits to long or unreasonably proceeds beyond the purpose for his initial detention, then he again violates the person’s constitutional right not to be unreasonably seized.

          Lastly, where the officer actually arrests the person he must have a greater quantum of evidence than merely a reasonable and articulate suspicion.  Indeed, he must have what is constitutionally termed "probable cause" to believe a crime has occurred. "Probable cause" has been defined by our courts as a measure of evidence that would lead a reasonable person, based on that person’s experience and training, to believe that a crime has occurred.  This probable cause measure requires a lesser quantum of evidence than is required to convict a person of a crime (proof beyond a reasonable doubt) or to win a civil lawsuit (preponderance of the evidence [i.e., 51%]).

          In any situation where an officer "detains" a person on less evidence than "a reasonable and articulate suspicion" or "arrests" a person on less evidence than "probable cause", he violates that person’s constitutional rights not to be unreasonably seized.  The remedy for this violation is to exclude from the prosecution’s case any and all evidence that was derived from the violation.

          Accordingly, when you find yourself in the typical DWI scenario (i.e., where you’re being detained for a DWI investigation but you’re not yet arrested) it is best to be polite, to invoke your rights to remain silent, and to have an attorney present, to not accidentally incriminate or convict yourself, and to let the officer do the best he can with the evidence he can legally develop.

8. If I’m arrested and transported to the police station, do I perform the sobriety exercises before a video camera recorder, submit to the Intoxilyzer test and answer questions concerning drinking ?

          Maybe, never and maybe!  First, however, immediately inform the officer, and all officers thereafter, that you want to remain silent until such time as you can contact an attorney and have a private consultation with him as to anything and everything the officer will ask you except for bail.  Be careful to tell the officers that you are neither refusing nor agreeing to cooperate with them.  Rather, tell them that your decision to refuse or agree will be premised upon the advice you receive from your lawyer. 

          Sometimes officers will say "you can’t have a lawyer yet".  This often occurs at the alcohol concentration test request and the video exercise test request stage.  The "you can’t have a lawyer" statement may or may not be true depending on the circumstances of your case.  But, you will have no way of verifying its truth until you speak to your lawyer.  Thus, the best thing to do is to remain polite but firm in your requests to speak to an attorney.  Simply put, do not take "no" for an answer.

          When the police allow you the opportunity to use the telephone immediately use it.  Call our office at 940.483.8000.

          Upon reaching an attorney on the telephone be sure to ask the officer for a chance to speak with the lawyer in private.  Where the police refuse to allow you privacy, they violate your right to an attorney.  Absent giving you privacy, the police provide you with only a warm body to talk to on the telephone.  This is so because the lawyer, in order to maintain the attorney-client privilege and to protect your right to remain silent, must tell you not to say anything.  Here, it is axiomatic that a lawyer can only give you proper advice where you can first tell him what has happened (i.e., he applies the law to the facts and he accordingly advises you what to do).

          Always do exactly what your lawyer tells you to do – nothing more and nothing less.  If he tells you to perform exercises before a video camera and/or to answer police questions concerning alcohol consumption, then do it.

          In regard to the intoxilyzer breath test, if your lawyer tells you to simply take it, we’d recommend changing lawyers.  It is, at least in the authors’ opinion, wrong to advise a person to take a test on a machine which is incapable of being independently verified as accurate and reliable.  It is equally wrong to advise a client to submit to such a test where the police fail to preserve, and in effect destroy the breath specimen they will ostensibly use to prove you guilty.  Personally, we’re not going to take a test that can’t be rechecked to determine it’s validity.

          Arguably, the best indicator of a person not having lost the normal use of his mental faculties is the fact that he simply won’t take the breath test.  Here, we believe a person would have to be drunk to agree to take a police test that is so enmeshed in debate about its non reliability and inaccuracies and where the police machine’s own manufacturer doesn’t warrant it fit for any particular purpose – including breath testing. Under such circumstances, only a drunk, insane, uneducated, or coerced person would submit to a breath test where the penalty for failure might result in 180 days confinement, a $2,000.00 fine and a year’s driver’s license suspension, not to mention other social and automobile insurance consequences, as opposed to a possible ninety day suspension for test refusal.  In other words, we would argue that, knowing the above, a person demonstrates no loss of his normal mental faculties by refusing the test, but does so by agreeing to take it.  Clearly, considering all the consequences and facts noted, it cannot be reasonable and prudent judgment to take such a non-preserved test.  Let us add one other "believe it or not" fact here just for emphasis.  Most police officers join in our opinion and would not take the breath test either!

If you are seeking aggressive criminal representation by an experienced criminal defense attorney for your Denton county theft case case or arrest in Denton County, contact the offices of Tim Powers today.  There is no charge or obligation for the initial consultation.  940.483.8000.

 *Tim Powers is an attorney licensed to practice law by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific legal question you should directly consult an attorney."

    WHAT IF I’M STOPPED FOR DWI?  WHAT SHOULD I DO ?

1. Think first, use common sense, and be open minded !

          First, don’t drink alcohol or use drugs and then drive!  No one likes drunk drivers as they are clearly a danger to themselves and others.  No sane person would be happy to be on the receiving end of a 3,500 pound projectile being piloted by an intoxicated person. 

          Second, recognize that police officers perform a very difficult and dangerous job, and that we all owe the good officers an extreme debt of gratitude for their efforts.  However, it should be remembered that police officers have a great deal of discretion in deciding to arrest a person.  Here, it is appropriate to note that experience has proved, time and time again, that a person’s lack of manners and overt rudeness is the quickest way to being handcuffed and placed in the back seat of a patrol car.  You should also recognize the reality that DWI, for purposes of an officer making an arrest, is strictly his opinion that the crime has been committed.  Like all jobs that human beings perform, there will be some officers that are better at it than others.  Accordingly, police are not only subject to making human mistakes, but also, to unconscious psychological influences which almost always gravitate toward guilt.

          It must also be noted that police work is very competitive, and as a result, officers like to win their cases.  Here, too, experience has shown that more than a few officers have misrepresented facts and told falsehoods to win their case.  One should keep an open mind as to the possibility of other motivations of the officer than simply that the driver was intoxicated in determining the reason for a DWI arrest.  For example, recent evidence has demonstrated that most officers who make numerous traffic and DWI arrests actually receive increased pay as a result of their subsequent court appearances for those arrests.  Indeed, in some cases the officer, in addition to receiving benefits of a private patrol car for his use only, and having his days off and work hours fixed, receives an amount of extra money equal to his regular pay for court appearances, i.e., his salary doubles.

2. What do I do if the officer signals me to stop by turning on his emergency lights ?

          Drive to the right lane as cautiously and quickly as possible, and continue there until you can either safely park on the shoulder of the road or in a parking lot.  Next, take your vehicle out of gear, shut off the engine and radio, and turn on your emergency flashers. Such quick and cautious actions on your part will indicate that your normal mental faculties are not impaired.  In addition, if the officer just wants to pass your vehicle, then your actions will allow him to do that in a safe manner.

3. Having drawn the black bean by being stopped, should I get out of the car ?

          Yes!  However, attempt to keep your hands visible and do not make quick movements.  Do not place your hands in your pockets.  Exit your car and walk to the right rear of your vehicle and wait for the officer.  Do not lean on your vehicle or stand between it and the police car.  Here, it must be understood that the officer does not know you or your intentions yet.  This is an extremely critical time for him, as he will be looking for a possible weapon you may have or for any threat to his safety that you may present. Recognizing the officer’s initial apprehension and the ease at which it may be lessened, you can establish an initial positive contact with him, rather than a negative one.  

4. Is there anything I should do before getting out of my vehicle ?

          Yes, take your driver’s license and proof of insurance card out of your wallet and bring them with you to give to the officer.  These two items will usually be the first things he will ask to see.  If you were to hand your wallet to the officer, with the license and insurance card in it, he would not take it for fear of being accused of removing money or something else of value.  Accordingly, since he would then ask you to remove the license and insurance card from it, you should do that before leaving your vehicle. These actions will demonstrate your cooperation and will lessen the officer’s fear factor as your hands will always be visible to him.  These actions will also evidence that you have not lost the normal use of your mental faculties, as the actions were both reasonable and prudent.

5. If asked, should I admit to drinking an alcoholic beverage?

          This is a tough question but the answer is generally "yes".  Since you will likely have an odor of an alcoholic beverage on your breath, it makes no sense to deny that you have had a drink.  In fact, with the odor of an alcoholic beverage present and you making a denial, it is only human nature for the officer to find that you are less than credible.  This fact to the officer would then likely give rise to a suspicion that you are trying to hide the fact that many drinks were consumed.

6. Do I admit to how many, where and when?  Is honesty the best policy ?

          It depends.  Any admission more than "two" will likely result in your arrest. This is especially true where the officer fails to ask "when?" because, for example, 4 beers is much different than 4 beers over eight hours.

          As to the second and third questions, it is not whether you tell the truth or fudge on the truth that is important.  Rather, the answer really lies in whether or not you tell the truth or don’t answer at all.  In this regard, the truth has resulted in many non-intoxicated drivers being arrested, and has subsequently cost them a small fortune for bond, automobile towing, time off from work and an attorney to prove their innocence.

7. If I’m not going to answer, what do I do ?

          Keep in mind that both our Federal and State Constitutions guarantee that you do not have to incriminate yourself.  Politely ask the officer why he stopped you and if you are presently under arrest.  Under our law a person can be under arrest and yet not be told so.

          Where the officer indicates that you are under arrest then you should immediately inform him of your desire to have an attorney present for any further questions.  Do not refuse or agree to perform police field sobriety exercises.  Rather, tell the officer you want advice from a lawyer to help you decide if you will refuse or agree to perform them.

          On the other hand, should the officer say you are not under arrest, then a different approach is in order.  Politely ask:  "Am I going to be written a traffic ticket?" And if so, "Will I be free to leave upon your completion of it?"  Where the officer says:  "Yes" to both questions, count your blessings, remain still and non threatening.  Be courteous and only speak when spoken to – never volunteer information as that will only serve to prolong your roadside stay.  Should he again ask about alcohol consumption, inform him of your choice not to answer any questions but those related to the specific traffic offense — and, stick to your right not to incriminate yourself.

          Well, what about a scenario where the officer says:  "You’re not under arrest, but you can not leave".  This is close to the typical DWI scenario.  Here, the safe thing to do is to inform the officer that you would prefer not to answer any more questions and would like to have a lawyer present.  Be polite and not talkative!  Doing this, you have in effect "punted the ball" to the officer.  He must now choose to let you go or to prolong his investigation.  Again, if he lets you go, count your blessings and drive safely.  Where he prolongs your roadside stay, he must be careful not to violate your federal and state constitutional rights to not be unreasonably seized.  The invocation of your rights to remain silent and to an attorney’s presence will make it more difficult for the officer to avoid violating your constitutional right to not be unreasonably seized.

          To further explain, a police officer, absent any belief that criminal activity is afoot, has a right to walk up to any person in a public place and talk to them.  However, the person may simply walk away.  Indeed, our law is clear that the person’s action in walking away cannot be used as evidence that he is guilty of something, i.e., that the invocation of a constitutional right cannot be equated to guilt.  In such cases where the officer, through use of his police status, either impliedly or expressly detains the person, he violates the individual’s right not to be unreasonably seized.

          To lawfully justify a brief detention of a person, the officer must have a specific and articulate reasonable suspicion that the person is presently involved in criminal activity. This justification cannot be legally made on the basis of a simple hunch or a gut feeling. The detention must be narrowly limited in both its duration and scope so as to allow the officer to maintain the status quo so that he may dispel or affirm his reasonable suspicions.  If the officer waits to long or unreasonably proceeds beyond the purpose for his initial detention, then he again violates the person’s constitutional right not to be unreasonably seized.

          Lastly, where the officer actually arrests the person he must have a greater quantum of evidence than merely a reasonable and articulate suspicion.  Indeed, he must have what is constitutionally termed "probable cause" to believe a crime has occurred. "Probable cause" has been defined by our courts as a measure of evidence that would lead a reasonable person, based on that person’s experience and training, to believe that a crime has occurred.  This probable cause measure requires a lesser quantum of evidence than is required to convict a person of a crime (proof beyond a reasonable doubt) or to win a civil lawsuit (preponderance of the evidence [i.e., 51%]).

          In any situation where an officer "detains" a person on less evidence than "a reasonable and articulate suspicion" or "arrests" a person on less evidence than "probable cause", he violates that person’s constitutional rights not to be unreasonably seized.  The remedy for this violation is to exclude from the prosecution’s case any and all evidence that was derived from the violation.

          Accordingly, when you find yourself in the typical DWI scenario (i.e., where you’re being detained for a DWI investigation but you’re not yet arrested) it is best to be polite, to invoke your rights to remain silent, and to have an attorney present, to not accidentally incriminate or convict yourself, and to let the officer do the best he can with the evidence he can legally develop.

8. If I’m arrested and transported to the police station, do I perform the sobriety exercises before a video camera recorder, submit to the Intoxilyzer test and answer questions concerning drinking ?

          Maybe, never and maybe!  First, however, immediately inform the officer, and all officers thereafter, that you want to remain silent until such time as you can contact an attorney and have a private consultation with him as to anything and everything the officer will ask you except for bail.  Be careful to tell the officers that you are neither refusing nor agreeing to cooperate with them.  Rather, tell them that your decision to refuse or agree will be premised upon the advice you receive from your lawyer. 

          Sometimes officers will say "you can’t have a lawyer yet".  This often occurs at the alcohol concentration test request and the video exercise test request stage.  The "you can’t have a lawyer" statement may or may not be true depending on the circumstances of your case.  But, you will have no way of verifying its truth until you speak to your lawyer.  Thus, the best thing to do is to remain polite but firm in your requests to speak to an attorney.  Simply put, do not take "no" for an answer.

          When the police allow you the opportunity to use the telephone immediately use it.  Call our office at 940.483.8000.

          Upon reaching an attorney on the telephone be sure to ask the officer for a chance to speak with the lawyer in private.  Where the police refuse to allow you privacy, they violate your right to an attorney.  Absent giving you privacy, the police provide you with only a warm body to talk to on the telephone.  This is so because the lawyer, in order to maintain the attorney-client privilege and to protect your right to remain silent, must tell you not to say anything.  Here, it is axiomatic that a lawyer can only give you proper advice where you can first tell him what has happened (i.e., he applies the law to the facts and he accordingly advises you what to do).

          Always do exactly what your lawyer tells you to do – nothing more and nothing less.  If he tells you to perform exercises before a video camera and/or to answer police questions concerning alcohol consumption, then do it.

          In regard to the intoxilyzer breath test, if your lawyer tells you to simply take it, we’d recommend changing lawyers.  It is, at least in the authors’ opinion, wrong to advise a person to take a test on a machine which is incapable of being independently verified as accurate and reliable.  It is equally wrong to advise a client to submit to such a test where the police fail to preserve, and in effect destroy the breath specimen they will ostensibly use to prove you guilty.  Personally, we’re not going to take a test that can’t be rechecked to determine it’s validity.

          Arguably, the best indicator of a person not having lost the normal use of his mental faculties is the fact that he simply won’t take the breath test.  Here, we believe a person would have to be drunk to agree to take a police test that is so enmeshed in debate about its non reliability and inaccuracies and where the police machine’s own manufacturer doesn’t warrant it fit for any particular purpose – including breath testing. Under such circumstances, only a drunk, insane, uneducated, or coerced person would submit to a breath test where the penalty for failure might result in 180 days confinement, a $2,000.00 fine and a year’s driver’s license suspension, not to mention other social and automobile insurance consequences, as opposed to a possible ninety day suspension for test refusal.  In other words, we would argue that, knowing the above, a person demonstrates no loss of his normal mental faculties by refusing the test, but does so by agreeing to take it.  Clearly, considering all the consequences and facts noted, it cannot be reasonable and prudent judgment to take such a non-preserved test.  Let us add one other "believe it or not" fact here just for emphasis.  Most police officers join in our opinion and would not take the breath test either!

If you are seeking aggressive criminal representation by an experienced criminal defense attorney for your Denton county theft case case or arrest in Denton County, contact the offices of Tim Powers today.  There is no charge or obligation for the initial consultation.  940.483.8000.

 *Tim Powers is an attorney licensed to practice law by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific legal question you should directly consult an attorney."

Tim Powers

940.483.8000

Theft is a broad criminal charge in Texas that includes a range of offenses from shoplifting to bouncing checks to buying stolen property. The punishments generally depend on the value of the stolen item, and can be as little as a fine or as serious as prison time in extreme cases.

The Texas Penal Code defines theft as taking someone else’s property without consent, either by deception or by physically stealing it. You don’t have to keep the property for it to be considered theft, but only long enough to deprive the owner of its value. And, if you take something, then return it for a reward, that is also theft under Texas law.

To charge you with theft, the police need to show that you acted with criminal intent, meaning you knew the property belonged to someone else and knew you didn’t have their permission to take it, and that you actually have or had possession of the property. They can do by that using physical evidence, such as security camera video in a shoplifting case, or by statements from a witness, an accomplice, or you.

Types of Theft Under Texas Law

The four most common ways to commit misdemeanor theft or felony theft in Texas are these:

1. Shoplifting – Taking items out of a store with the deliberate intention of not paying the store for the full value of the item. This includes taking, say, a shirt and leaving with it, or switching the tag on an expensive shirt with the tag on a less expensive one and paying the lower price at checkout.

2. Bad checks – Paying for an item on a closed account or an account that does not enough money to cover the amount of the check. If the check is written on a closed account, that alone is evidence of theft under Texas criminal law. If the check bounces, and you do not reimburse the merchant within 10 days of notification, then that is evidence of theft under the law.

3. General theft – Taking an item that belongs to someone else by any means when you do not have permission. Examples of this include taking a woman’s purse from her shopping cart when her back is turned, stealing copper from a construction site, or taking $20 from the cash register at work.

4. Buying/accepting stolen property – Taking possession of an item when you know the person selling or giving it to you is not the rightful owner. If you know a friend shoplifted an item from a store, then passed the item on to you, you have committed theft by taking it, whether you paid for it or it was a gift.

Other common theft charges include  embezzlement, and  theft of services, which is the stealing of something that isn’t a physical item. This charge also may be be related to fraud or bad checks.

Penalties for Theft in Texas

The punishment for the criminal charge of theft in Texas is relative to the value of the item stolen. Obviously, the more value the item has, the higher the penalty for taking it. And if it is more than one item, all the values are added together for the purposes of punishment.

For example, you may be charged with shoplifting five DVDs. Individually, they may be worth about $20 each. But added together, the total of the theft is $100, and that raises the seriousness of the punishment.

Penalties for Theft

Those punishments can also be enhanced under certain conditions. For example, Class B and C misdemeanor theft charges increase one level if you have a previous theft conviction, and a Class A misdemeanor becomes a state jail felony if you have two previous theft convictions.

Also, the theft of some items such as firearms or metals such as copper or aluminum are felonies no matter the actual value.

Shoplifting charges also automatically become more serious if you are caught using tools to defeat theft prevention devices, or if you are charged with organized retail theft, meaning you were working with others to steal items for profit.

However, in all likelihood, if you are charged with simple theft by shoplifting and are convicted or enter a plea, you probably will receive only community service and fines, as long as the value is low and it’s a first or second offense. However, you are still stuck with a permanent criminal record which may never go away.

The fact of a permanent, public criminal record is the reason why most people hire a shoplifting defense attorney to fight the charges. Avoiding a criminal record in the internet age can save you tremendous headaches in the future. It could prevent you from getting a job, a scholarship, or worse.

Civil Penalties for Shoplifting

The criminal shoplifting record for a conviction might not be the end of it, either.

A conviction for the criminal charge of theft frequently includes restitution to the victim, but Texas also has the Texas Theft Liability Act. This civil law allows the victims of theft to sue for damages and is separate from the criminal case.

The suits are typically used in shoplifting cases. The store will send you a letter demanding that you pay the value of the stolen item, as well as costs related to recovery. The law allows the victim to collect actual damages, plus up to $1,000 against an individual or actual damages, plus up to $5,000 against the parents or guardians if the accused shoplifter is a minor.

You should not try to face either the criminal charge of theft or a civil suit in a shoplifting case without consulting a Texas criminal defense lawyer who knows how to defend shoplifting/theft offenses. We can fight the case against you by challenging the reliability of eyewitness or accomplice testimony, and by questioning the legality of any searches by police or admissions you may have made to them.

If you are seeking aggressive criminal representation by an experienced criminal defense attorney for your Denton county theft case case or arrest in Denton County, contact the offices of Tim Powers today.  There is no charge or obligation for the initial consultation.  940.483.8000.

 *Tim Powers is an attorney licensed to practice law by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific legal question you should directly consult an attorney."