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 limit.”
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.