Last week I won a not guilty verdict in a .21/.22 breath test DWI case.
It was a satisfying victory because high test result DWI’s are not
easy to win. The blood alcohol level at which persons are presumed to
be intoxicated in Texas is .08. My client, according to the prosecutor
in the case in opening statement, was “almost three times the legal
It is difficult enough to win any criminal case as a defense attorney because,
and I am sad to say this having been a prosecutor for 18 years, there
is no such thing as the presumption of innocence in the American courtroom.
Sure, we all talk about the presumption of innocence, but I know from
experience, now on both sides of the criminal justice bar, that the presumption
of innocence is a convenient myth.
In every voir dire (jury selection process) I do, the first thing I talk
to prospective jurors about is the presumption of innocence and, while
everyone seems to agree that it is a good idea in theory, when actually
faced with an accused in the courtroom, the first question most prospective
jurors ask themselves is “I wonder what she did.” So, I challenge
the jurors on their views about the presumption and sometimes they get
a little hostile about it. No one wants to admit that they come into the
courtroom for jury duty with strong predispositions toward convicting
whoever is sitting in the chair next to the defense attorney. The presumption
of innocence and the burden of proof of beyond a reasonable doubt are
a significant part of the discussion I have with prospective jurors.
The day of the not guilty verdict, my associate attorney, Donnie Andreski,
a retired police lieutenant with the College Station Police Department
who went to law school and now practices law with me, posted a congratulatory
note on his Facebook page. His note read:
“Congratulations to Shane Phelps and Jean Ricciardello Phelps who
got a Not Guilty verdict today in a DWI with a .21 breath test result.
It was impressive to watch as they held the State to their burden of proof
beyond a reasonable doubt.”
That’s it. An attorney congratulating his boss (and my wife, Jean,
who helped me try the case) for holding the State to its burden of proof.
That’s when it hit the fan. Several of Donnie’s police officer
friends were apparently offended that a .21 DWI defendant got off and
that “a bunch of defense attorneys” were celebrating about
it. It got pretty nasty, with one of the officers, an active DPS Trooper,
actually insulting my wife on a personal level and attacking Donnie for
“drinking the Kool-Aid” and moving over to “the Dark
Side.” Donnie was “unfriended” twice that night.
Now, it is important to note that these officers knew nothing about the
case except that the defendant allegedly blew a .21 on the breath test.
They did not hear the testimony of the arresting officer. They did not
hear or see the cross-examination of this same officer when he admitted
that the defendant had lost none of her mental faculties. That’s
right, the officer testified, in response to my questioning, that my client
had full control of her mental faculties throughout the entire arrest
episode. That’s pretty significant because one of the definitions
of intoxication in Texas is the “loss of the normal use of mental
faculties.” The officer begrudgingly agreed that my client should
be found not guilty of at least that theory of intoxication.
The officer also testified that the video clearly showed that my client
had virtually no balance issues throughout the arrest episode, save for
a few stumbles on the Field Sobriety Tests. At every point on the video
shown to the jury, my client exhibited no balance problems at all. The
officer agreed with me that she appeared “rock solid” and
“steady” while getting out of her car, walking around (even
when she was handcuffed behind her back), and standing as the officers
huddled to decide whether to arrest her for DWI. The prosecutor even referred
to my client’s “commendable balance” in his attempt
to rehabilitate the police officer’s testimony.
So what then can be made of the machine, the Intoxilyzer 5000 EN, and its
reading of a .21/.22?
Texas has been using the Intoxilyzer 5000 for decades. Its accuracy has
been challenged many times in court. Usually, juries accept what the Intoxilyzer
says. But should they? This was a good case for demonstrating that the
Intoxilyzer may not be all that the State represents it to be. It should
be challenged in every breath test DWI case.
The Technical Supervisor, the DPS employee with a bachelor’s degree
in biology, is responsible for relating to the jury how the machine works,
how it is maintained and calibrated, and how accurate it is supposed to
be. This technical supervisor appeared to know less about the Intoxilyzer
and the underlying scientific principles upon which it is supposed to
be based, than I did, an English major from Rice. It is not a particularly
complicated or sophisticated machine and it is not difficult to get a
jury to understand its many shortcomings.
The technical supervisor in this case agreed with me on cross-examination
that it would be impossible for someone to be a .21/.22 and not have lost
the normal use of his or her mental or physical faculties. Therefore,
there was an obvious disconnect between the defendant’s appearance
on the video and the results of the machine. The State’s response,
as always, was “tolerance.” Without any evidence of the drinking
habits of my client, the technical supervisor and the State implied that
my client must be an accomplished drinker to be able to appear not intoxicated
when she really was. Except, at such a high alleged alcohol level, all
the literature, including that accepted as authoritative by the technical
supervisor, demonstrates that there would be an obvious lack of mental
and physical faculties in anyone at that intoxication level.
So, the jury heard all of this, and more, spent two hours going over the
evidence, watching the videos (both the in-car dash video and the Intoxilyzer
room video), deliberating among themselves and, thankfully, taking to
heart our discussion in voir dire about the presumption of innocence,
the high burden the State has to overcome before finding someone guilty
beyond a reasonable doubt, the critical role of the jury in our justice
system, and the integrity of the system itself.
And the six of them unanimously found that the State failed to meet its
burden and found my client not guilty beyond a reasonable doubt.
And yes, that should be celebrated. The jury took its oath seriously. They system worked and was strengthened
by this verdict.
And, by the way, the jury included six very intelligent and conscientious
citizens of Brazos County, including a teacher at a local junior high
school, a professor of sociology from A&M, a professor of computer
science from A&M, and a Catholic priest.
I love police officers. I worked side-by-side with them championing their
work in Texas courtrooms for almost two decades. I have been privileged
since I entered private practice three-and-a-half years ago to be contacted
by a number of local officers for legal representation.
But, police officers are human and they make mistakes. Sometimes they get
so convinced that they know that someone is guilty that they will exaggerate
or even lie. You know, the ends justify the means. Sometimes a case looks
good on the street and completely different in the courtroom.
A healthy and free democracy requires a strong justice system to prevent
government over-reaching. I tell juries that they are the final defense
of liberty in the courtroom, the justice system’s quality control.
If every trial is not a battle to force the State to prove its case beyond
a reasonable doubt, the system is weakened and, when it really counts, it fails.
I’ve seen the system fail more than once and it is not a pretty sight.
So, while I understand the knee-jerk response to a not guilty verdict on
a .21 breath test from police officers, they should take a moment to consider
what they are saying. Without having heard the evidence in the case, without
hearing the testimony and cross-examination of the State’s witnesses,
without having seen the videos in the case, and without meaningfully considering
the circumstances under which the testing in this place took place (and
apparently assuming that machines never fail) they have substituted their
judgment for that of the jury of citizens whom they are sworn to serve.
Let me say this as clearly as possible: when the police begin to resent
the public’s oversight of the criminal justice system through its
jury system, the seeds of a police state are sown.
What happened in the courtroom last Thursday was justice. Pure and simple.
And to the DPS Trooper who insulted my wife, Jean, in the face of her simple
and elegant defense of the virtues of our criminal justice system: if
you no longer respect the people you serve, retire.
And leave my wife the hell alone.