Man Blows 0.00BAC Arrested for DWI

[WildBill]

To Austin attorney Daniel Betts, driving while intoxicated can sometimes be what he calls “an opinion crime.” Law enforcement must decide, sometimes within only a matter of minutes, whether a person is intoxicated and should go to jail -- or be allowed to simply drive way.

On the night Austin police arrested his client, they made the wrong choice, he says – his opinion bolstered by a voluntary breath and blood test showing Larry Davis wasn’t intoxicated when he was arrested Jan. 13, 2013. He tested 0.00 on a Breathalyzer – the lowest possible reading -- and the blood test, which took months to be tested, came back negative.

Cmdr. David Mahoney, the arresting officers’ supervisor, said he supports the decision to arrest Davis.

“If there is someone who is possibly impaired, we don’t want them driving,” Mahoney said. “We need to get them off the road, so that was probably (the officer's) mindset.”

Prosecutors last week dismissed the case against Davis.

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[The Annoyed Man]

Prosecutors last week dismissed the case against Davis.

When is the Prosecutor's trial for terminal stupidity? I happen to know that it only takes 20 minutes or so to get a blood alcohol result back. I've seen it hundreds of times. When it takes months for a prosecutor to get back a piece of exculpatory evidence that could have been obtained in 20 minutes, it is hard to argue that he didn't violate Davis's rights. Who pays for that injustice? The prosecutor? I doubt it.

[Keith B]

Unless there were other indicators in the FST that weren't visible in the dashcam video, this officer definitely was over the line on it.

I can tell you there are times that officers make wrong calls. One was an incident involving me back when I was a teen. I had worked 12+ hours doing inventory and stocking at my sporting goods store job. I had not slept well the night before and was super tired. On the way home about 9:30 at night I stopped to get something to eat at a burger place. When I came out 3 cars had been egged. I called the police since it had actually chipped the paint on mine. When the officer came and took the report I knew him as my brother-in-law was a patrolman at that time. We chatted for a bit and I left and headed home. A couple of days later my brother-in-law asked me about the incident and said the officer had told him I looked to have been 'drunk and was three sheets to the wind'. I got really mad and told my BIL that the officer had NEVER asked me anything about drinking (I had not been) and that if he thought I was intoxicated intoxicated by any means he should have administered an FST instead of letting me go on. My BIL stated he would go back and tell the officer that he had been incorrect and to not assume anything or let someone go on 'professional courtesy' if I could have been a danger to myself or others. Needless to say that officer was not very bright and ended up being let go shortly afterward. He became a mailman, which was probably a job much more suited to his intelligence level.

[WildBill]

Prosecutors last week dismissed the case against Davis.

When is the Prosecutor's trial for terminal stupidity? I happen to know that it only takes 20 minutes or so to get a blood alcohol result back. I've seen it hundreds of times. When it takes months for a prosecutor to get back a piece of exculpatory evidence that could have been obtained in 20 minutes, it is hard to argue that he didn't violate Davis's rights. Who pays for that injustice? The prosecutor? I doubt it.

The blood screen took took a month, not the alcohol test. The guy who was arrested has already paid - in full.

[Oldgringo]

This goes to a recent previous thread/s on DUI/DWI. You are as "drunk" as the arresting officer/s say you are. It is your task to prove otherwise.

[WildBill]

This goes to a recent previous thread/s on DUI/DWI. You are as "drunk" as the arresting officer/s say you are. It is your task to prove otherwise.

[gigag04]

I have made many DWI arrests that have been under a 0.08 BAC. After watching the video, I'm OK with the arrest, but would've done more testing in the field.

From Ch 49 of the PC:

(2) "Intoxicated" means:
(A) not having the normal use of mental or physical 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; or
(B) having an alcohol concentration of 0.08 or more.

I hold a certification from a course that trains an officer in identifying impairment from sources other than alcohol. It is many of the same indicators used by ER doctors to classify which drug category a patient has abused. Being APD, I know they have a few DRE's on staff - I probably would've called one out in this case. That is where this officer took a wrong turn.

Most common arrests in my time were PCP, followed by Marijuana combined with alcohol, and third would be pills, mostly Xanax. Many of the intoxicants listed do not show up as a measured quantity in blood tests, but only a positive for presence of XYZ.

I watched the video, and saw enough clues on Walk and Turn, and the one leg stand to make an arrest. I would really like to have seen his eyes, and do a couple of follow up tests outside the scope of the SFST battery, as I bet he was using something besides just the "one drink" of alcohol.

I'm also fine with the prosecutor dropping the case. The officer didn't put together a good enough case and gather enough information to go forward with a type one case (loss of faculties).

[Oldgringo]

I have made many DWI arrests that have been under a 0.08 BAC. After watching the video, I'm OK with the arrest, but would've done more testing in the field.

From Ch 49 of the PC:

(2) "Intoxicated" means:
(A) not having the normal use of mental or physical 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; or
(B) having an alcohol concentration of 0.08 or more.

I hold a certification from a course that trains an officer in identifying impairment from sources other than alcohol. It is many of the same indicators used by ER doctors to classify which drug category a patient has abused. Being APD, I know they have a few DRE's on staff - I probably would've called one out in this case. That is where this officer took a wrong turn.

Most common arrests in my time were PCP, followed by Marijuana combined with alcohol, and third would be pills, mostly Xanax. Many of the intoxicants listed do not show up as a measured quantity in blood tests, but only a positive for presence of XYZ.

I watched the video, and saw enough clues on Walk and Turn, and the one leg stand to make an arrest. I would really like to have seen his eyes, and do a couple of follow up tests outside the scope of the SFST battery, as I bet he was using something besides just the "one drink" of alcohol.

I'm also fine with the prosecutor dropping the case. The officer didn't put together a good enough case and gather enough information to go forward with a type one case (loss of faculties).

"...walk and turn..." I had a knee replaced last January. As a result, I don't "walk and turn" as well as I used to and I dang sure ain't to good on the "one legged stand".

[texanjoker]

Prosecutors last week dismissed the case against Davis.

When is the Prosecutor's trial for terminal stupidity? I happen to know that it only takes 20 minutes or so to get a blood alcohol result back. I've seen it hundreds of times. When it takes months for a prosecutor to get back a piece of exculpatory evidence that could have been obtained in 20 minutes, it is hard to argue that he didn't violate Davis's rights. Who pays for that injustice? The prosecutor? I doubt it.

Actually it takes the police several months to get this back. This is not done by a hospital, but sent to a lab so that part is correct.

Nothing to do with this arrest, but I would NEVER take a field sobriety test. They are not required and as you get older are hard to do. That is not saying that after you are arrested the blood or breath is not required, because that is. Having been in the DWI and DUI courses in two states, I have been told to practice to make sure I don't mess up showing the example. Those that work DWI units practice in front of the mirrors to make sure they have it down pat so they have an advantage when giving an example. That is also why you ask a person before beginning if they have any physical impairment that will prohibit them from taking the test. If they say no and fail, no defense later. If they say I had a knee replaced you do a different test.

Having worked many DWI's in my lifetime, the one test that doesn't lie is the eyes. I wonder what the officer saw in the eyes There are other chemicals that can affect a persons ability to drive that don't show up unless specifically tested. I worked a good crash one time where the person was on Soma and impaired. Glad to see this case dropped for lack of evidence. I AM glad to see they actually got evidence. I just don't get DWI arrests here in TX that usually have no chemical evidence.

Personally I have preferred to give rides home, but some just have to take the ride for various reasons.

[Keith B]

I watched the video, and saw enough clues on Walk and Turn, and the one leg stand to make an arrest.

This can also be a false indicator. I have a younger brother with MS. The disease affects walk and gate and in turn his capability to do these types of tests well even if he is totally on his game. A few years ago he was arrested for DWI after attending a concert. He went through a sobrity check point and he had a couple of beers at the concert. When he failed the W&T and 1-leg stand they arrested him, even thoguh he only blew a .02. He tried to explain to them he had MS, but since it was a SCP they were busitng everyone. He several times requested a blood draw and they finally consented, but still charged him. When the blood draw came back he showed only his regular meds which he had a cerified letter form his Dr. stating the meds would not impare him. The DA dropped the case at that time and he went back and got restitution for his lost time, legal fees and other expenses from the city for improper arrest.

[texanjoker]

I watched the video, and saw enough clues on Walk and Turn, and the one leg stand to make an arrest.

This can also be a false indicator. I have a younger brother with MS. The disease affects walk and gate and in turn his capability to do these types of tests well even if he is totally on his game. A few years ago he was arrested for DWI after attending a concert. He went through a sobrity check point and he had a couple of beers at the concert. When he failed the W&T and 1-leg stand they arrested him, even thoguh he only blew a .02. He tried to explain to them he had MS, but since it was a SCP they were busitng everyone. He several times requested a blood draw and they finally consented, but still charged him. When the blood draw came back he showed only his regular meds which he had a cerified letter form his Dr. stating the meds would not impare him. The DA dropped the case at that time and he went back and got restitution for his lost time, legal fees and other expenses from the city for improper arrest.

I'd like to know what he saw in the eyes. Back in the day when I worked more of these I could tell a persons BAC purely by their nystagmus....Did he see anything there? I always prefer to err on the side of caution vs making a bogus arrest hence I have never lost a DWI / DUI case. Better to let one go then do this to an innocent.

[WildBill]

He became a mailman, which was probably a job much more suited to his intelligence level.

No more mail for you!

[Keith B]

I watched the video, and saw enough clues on Walk and Turn, and the one leg stand to make an arrest.

This can also be a false indicator. I have a younger brother with MS. The disease affects walk and gate and in turn his capability to do these types of tests well even if he is totally on his game. A few years ago he was arrested for DWI after attending a concert. He went through a sobrity check point and he had a couple of beers at the concert. When he failed the W&T and 1-leg stand they arrested him, even thoguh he only blew a .02. He tried to explain to them he had MS, but since it was a SCP they were busitng everyone. He several times requested a blood draw and they finally consented, but still charged him. When the blood draw came back he showed only his regular meds which he had a cerified letter form his Dr. stating the meds would not impare him. The DA dropped the case at that time and he went back and got restitution for his lost time, legal fees and other expenses from the city for improper arrest.

I'd like to know what he saw in the eyes. Back in the day when I worked more of these I could tell a persons BAC purely by their nystagmus....Did he see anything there? I always prefer to err on the side of caution vs making a bogus arrest hence I have never lost a DWI / DUI case. Better to let one go then do this to an innocent.

Don't know about the HGNT as I don't know all of the full details. This was about 12-13 years ago and in one of the St. Louis suburbs that were notorious for making DWI sweeps.

[texanjoker]

I watched the video, and saw enough clues on Walk and Turn, and the one leg stand to make an arrest.

This can also be a false indicator. I have a younger brother with MS. The disease affects walk and gate and in turn his capability to do these types of tests well even if he is totally on his game. A few years ago he was arrested for DWI after attending a concert. He went through a sobrity check point and he had a couple of beers at the concert. When he failed the W&T and 1-leg stand they arrested him, even thoguh he only blew a .02. He tried to explain to them he had MS, but since it was a SCP they were busitng everyone. He several times requested a blood draw and they finally consented, but still charged him. When the blood draw came back he showed only his regular meds which he had a cerified letter form his Dr. stating the meds would not impare him. The DA dropped the case at that time and he went back and got restitution for his lost time, legal fees and other expenses from the city for improper arrest.

I'd like to know what he saw in the eyes. Back in the day when I worked more of these I could tell a persons BAC purely by their nystagmus....Did he see anything there? I always prefer to err on the side of caution vs making a bogus arrest hence I have never lost a DWI / DUI case. Better to let one go then do this to an innocent.

Don't know about the HGNT as I don't know all of the full details. This was about 12-13 years ago and in one of the St. Louis suburbs that were notorious for making DWI sweeps.

I wasn't referring to your brothers eyes, but the guys eyes in this discussion. That is a learned skill that one develops or should develop with time and experience.

[The Annoyed Man]

I have made many DWI arrests that have been under a 0.08 BAC. After watching the video, I'm OK with the arrest, but would've done more testing in the field.

From Ch 49 of the PC:

(2) "Intoxicated" means:
(A) not having the normal use of mental or physical 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; or
(B) having an alcohol concentration of 0.08 or more.

I hold a certification from a course that trains an officer in identifying impairment from sources other than alcohol. It is many of the same indicators used by ER doctors to classify which drug category a patient has abused. Being APD, I know they have a few DRE's on staff - I probably would've called one out in this case. That is where this officer took a wrong turn.

Most common arrests in my time were PCP, followed by Marijuana combined with alcohol, and third would be pills, mostly Xanax. Many of the intoxicants listed do not show up as a measured quantity in blood tests, but only a positive for presence of XYZ.

I watched the video, and saw enough clues on Walk and Turn, and the one leg stand to make an arrest. I would really like to have seen his eyes, and do a couple of follow up tests outside the scope of the SFST battery, as I bet he was using something besides just the "one drink" of alcohol.

I'm also fine with the prosecutor dropping the case. The officer didn't put together a good enough case and gather enough information to go forward with a type one case (loss of faculties).

Gigag, FWIW, note that I did not criticize the officer's judgement at the scene. I criticized the prosecutor for taking months to drop charges against a man for whom there was no hard evidence of wrong-doing......only the officer's suspicions in the field. My main point is this: if the subject blew a 0.00 and officers were still convinced that the man was intoxicated, fine....arrest him. He might be intoxicated on something else, in which case he is still driving illegally. But once he gets to jail, draw his blood, run a tox screen, and when the results come back negative THAT NIGHT (because the truth is that it shouldn't take longer than 15-30 minutes to get results, just ask any hospital clinical lab employee), then he gets released and charges are not even filed.

In this case, the man is innocent (at least in legal terms), but it still takes the prosecutor's office many months to drop the charges? That's unjust to keep something like that hanging over a man's head in the absence of any evidentiary reasons to do so. THAT was my trigger.......not the fact that officers in the field thought an arrest was necessary. I don't necessarily agree with every decision arrived at by all officers, but that doesn't change the fact that at some point I have to just trust them to do their jobs right and then let the facts get sorted out afterward. It is the prosecutor here that I object to.