Interviewer: What’s the typical sequence and events someone will go through from the point they’ve been arrested all the way through resolution of their case?
Gary: Initially what happens is they are going to be pulled over by a law enforcement officer and the officer is going to approach the car. He’s got a suspicion right there that probably the driver’s intoxicated depending on what he’s observed.
For example, the officer may have observed a failure to lane change without signaling or speeding. I have also handled cases where the officer ran the license tags on the computer and then claimed that the tags were expired or not renewed, and used that as justification to pull them over. In those cases, the probable cause for the police stop was that their tags were expired.
At that point and time they’re going to pull them over. They’re going to ask them some questions, ask them for proof of insurance and a driver’s license. Then if the officer suspects that they’ve been drinking, he is going to ask them if they would step out of the vehicle and ask them to perform some field sobriety tests.
The basic field sobriety test in the state of Texas are the walk and turn, the one leg stand, and the HDN, Horizontal Gaze Nystagmus test, which is basically not scientific, but the police claim it’s actually a valid scientific test. There are so many holes to validity of that particular test, half the officers who are alleged to be certified don’t have a clue about the procedures are for giving it, or what’s necessary.
Smoking can affect the results as well as cold weather and actually some people have an actual naturally occurring Nystagmus they cannot control. In other words, their eyeballs bounce for no reason whatsoever. I have a son that’s like that. Every time you know, he becomes scared his eyeballs will begin bouncing and it is a completely natural function.
So, for people with that condition, the police are going to have a hard time establishing that as a sole basis for the DWI arrest. That just gets them in the door. Then the officer will ask the individual to do the one leg stand and the walk and turn. Basically what they’re looking for are clues.
Their idea of clues is basically every small mistake you make is considered a clue. For example, if you don’t understand directions then you are not following the directions specifically. The officer will hold that against you. After he has observed two or three clues then he will ask you to undergo a breath test. At that point, the officer is going to place you under arrest, take you downtown and administer a breath test at the station.