About Me• Graduated BBA in Finance from The University of Texas at Austin• Graduated from The University of Houston Law Center• Spent two years practicing law in Central Texas

Worked for Jamie “The DWI Dude” Balagia• Practice currently consists mainly in Dallas/Collin Counties

(approximately 80%); Tarrant County/Denton County/Rockwall County/Kaufman County (20%)

• Approximately 80% of my practice devoted to DWI Defense• Tried DWI cases in 11 counties around Texas• Certified NTHSA Practitioner Course, with yearly updates• Certified NHTSA Instructor• Certified Intoxilyzer 5000 Operator• Completed DRE “ARIDE” program• Completed Advanced “HGN” studies with Dr. Steve Rubenzer

NHTSAIT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN:• THE TESTS ARE ADMINISTERED IN THE PRESCRIBED,

STANDARDIZED MANNER• THE STANDARDIZED CLUES ARE USED TO ASSESS THE

SUSPECT’S PERFORMANCE• THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET

THAT PERFORMANCEIF ANY OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED.

* VIII-19 (August 2006 Edition)

Goal: Golden wordsYou are successful when the words are said by jury members after a two-word verdict trial…

“We think he/she*may have been intoxicated,, but we don’t think the state proved it beyond a reasonable doubt.”

Damned if they do, Damned if they Don’t• Non-standardized tests:

If they didn’t do them, why not? Argue the arresting officers need to think “outside the box” Definition is “normal use” – why not test them on “normal” tasks? ABC

Test? Counting, etc.? Athletic Coach Analogy - hammer home to think outside the box

If they did do them, argue it was because they were unsure of the results of the “standardized tests”

• Doing SFST’s twice (at the station or on the roadside)” If they did the tests twice, argue they were unsure of the results the first

time If they did NOT allow them to do it twice, argue what “standardized” test

does not allow for practice? Could have given a retest – and I say, just to give them the benefit of the “doubt.” *Start hammering home seeds of doubt

DWI Detection Process

Vehicle In MotionPersonal ContactPre-Arrest Screen-ing

Focus Points• HOUSE ANALOGY (Begins in voir dire)• NHTSA Manual is Guidebook• Establish yourself as the ultimate authority on

NHTSA: “As your “inspector” – my job is to know it front to back.”

• Key point: An officer rarely, if ever, performs all 3 tests correctly

• Strategy: “Damned if they do, damned if they don’t.”

Distinguish DWI

• Victimless crime (unlike other crimes, theft, robbery, etc. there is a victim) – there is a potential victim, but the arrest and charge itself is subjective.

• Trial Theme: DWI is a subjective and a “opinion” crime in the eyes of the officer

• Whenever you can, remind jurors the arrest is made on “probable cause.

• Real Quotes: “I’m arresting you on the ‘suspicion’ of Driving While Intoxicated.” “My job is to make an arrest, and we let you guys (DA’s) do the

rest

Cross-Examination Themes• No juror inherently wants to believe that police officers lie, fudge the truth,

embellish facts. DO NOT BE ADVERSERIAL• Remind jurors, you can vote “Not Guilty” – and still shake this officer’s hand and

tell him he did a good job• *SFST’s designed for failure – is it normal to stand on one foot on an imaginary

line, with one foot in front of the other, heel to toe, etc.?• Nerves can affect physical performance of tests

– I get nervous when I get pulled over– Football coaches call timeouts before field goals to “ice” the kicker, hopefully because their

nerves will affect how they physically perform

• Emphasize everything they did that are NOT signs of intoxication (i.e. everything they did well, simply being tired can mimic the effects of intoxication)

• Try to get some portion of the SFST’s audio redacted(Fischer commentary, PBT results, VGN results, other arrest dialogue – jury usually infers state is hiding something in my experience)

Cross-Examination Pointers• Recognize NHTSA as authority (I bring at least 5 of my manuals)

Learned Treatise (Rule 803(18)of TRE)• First question: Can you tell the jury what NHTSA stands for?• Vehicle-in-Motion: 24 driving clues listed (speeding not a clue)• Personal contact phase: list everything that is good, refer to manual

(they did not have trouble exiting the vehicle, did not lean on the vehicle for support) “Officer, I bet you have seen some pretty interesting things, people throwing in

the car, passing out crying, begging? etc? You didn’t see any of those things in this case?”

*V 4-10 (August 2006 Edition)

HGN• When learning this, you were trained by another officer? Not a doctor? • Officer, have you had any training in eye movements or eye conditions by optometrists or

ophthalmologists? What training do you have in eye muscle movement?• 47 different types/38 different causes of Nystagmus• If they deviate at all with conducting HGN, point out result/validity is compromised (rarely

done correctly by the AO’s)• Tell the jury the difference between nystagmus and saccades?• NHTSA states “People exhibit slight jerking of the eye at maximum deviation, even when

unimpaired.” *VIII-5 (August 2006 Edition)• Did you use a protractor when doing onset prior to 45 degree (NHTSA manual says to use

protactor)• Could have videotaped the eye• In closing of a trial “May have observed I’m not a big fan of HGN testing, maybe in a proper

laboratory setting, etc.”• Explain optokinetic nystagmus – easy to argue in many, many DWI arrests• VGN – If conducted and not observed, point this out (indicates a high dosage of alcohol,

correct?)

WAT/OLS• Have AO’s list instructions, verbatim (Jury then sees how many instructions there are, and

thus, how hard it is to remember them; AO’s often leave out certain instructions)• Have them list every clue (especially for the WAT, again – AO’s more often than not cannot

remember what all 8 clues are) *VIII 10-11 (August 2006 Edition)• Have them list each clue observed (“you mean, you can do 17/18 steps correctly, and this is a

clue that you count against an individual?”• How many “standardized” tests do NOT reward people from things that are done correctly?• Imaginary Line – “WAT test requires a designated, straight line.” *VIII-11 (August 2006 Edition)• OLS Test – *Most jurors will recognize the absurdity that not being able to hold your foot up

for 30 seconds means that you are intoxicated, particularly older jurors.• *Practice Point – “Original research indicates that certain individuals over 65 years of age,

back, leg, inner ear problems (vertigo), or people who are overweight by 50 pounds or more had difficulty performing this test. Individuals wearing heels more than 2 inches high should be given opportunity to remove their shoes.” *VIII-14 (August 2006 Edition)

• * Practice Point – “Examples of conditions that may interfere with suspect’s performance of the WAT tests: 1) Wind/weather conditions; 2) suspect’s age, weight; 3) suspect’s footwear.” *VIII-18 (August 2006 Edition)

Final Cross Examination Points• Be nice and courteous (you can lose a case with good facts by being a jerk to the AO – jurors do not

want you to beat up on a police officer)• Stick closely as you can to the NHTSA manual • Tests designed for failure (do tightrope walkers walk with hands by their side, or with a pole? How

often do you walk with your hands directly by your side?• At each stage, ask “After this portion, you did not have Probable Cause to Arrest Hero, so you

continued with your investigation? Because you wanted to be sure?• Do not distract the individual (“Observe the suspect from a safe distance and limit your movement

which may distract the suspect during the test” / “Observe the suspect from a safe distance and remain as motionless as possible during the test so as not to interfere.” *VIII-11,13 (August 2006 Edition)

• Any deviation, validity is compromised!• Any NHTSA certifications you may personally have, downplay significance when crossing AO• If officer fights you with every answer, this is a good thing! They lose credibility. Marry them to the

NHTSA manual. (“Officer, I promise I am not trying to trick you with my questions…”)• If the officer DOES NOT fight you, he has recognized that you know more about NHTSA than he/she

does, and you have won the battle.• Remember, establish yourself (albeit firmly, but politely) that you are the authority when it comes to

NHTSA. *YOU ARE THE INSPECTOR OF THE HOUSE