An Austin Court of Appeal recently had to decide if spinning the tires while leaving a bar at 2:30 in the morning created reasonable suspicion to justify a traffic stop which ultimately led to an arrest for DWI. The same court had previously ruled that spinning the tires alone did not create reasonable suspicion so the question before the court was if the time and location of the individual spinning his tires created reasonable suspicion.

The court found that pulling out of a bar parking lot quickly and late at night, even when coupled with other factors like spinning the tires, did not rise to the level sufficient to create reasonable suspicion to conduct a traffic stop for DWI. Since the police did not have probable cause for the traffic stop the defendant prevailed on his motion to suppress and the evidence was excluded from being used against him in court.

The Police Stop

Sergeant John Klenk of the Burkburnett Police Department testified that on the evening of March 20, 2008, dispatch received a call from an unidentified person at Red River Hospital regarding Cynthia Priddy, who had sought admission to the hospital. Sergeant Klenk testified that the person from the hospital told dispatch that the hospital could not admit Cynthia Priddy because the hospital was full but also said that Cynthia had been drinking and appeared to be intoxicated. This person also said that Cynthia had left the hospital in a Hummer. The person from the hospital provided dispatch with Cynthia’s name, make of car, location and direction of her departure, and her address.

Sergeant Klenk located the Hummer at around 11:00 or 11:15 p.m. – about fifteen minutes after receiving the information from dispatch-on the side of the road in front of Citibank, legally parked, but still running and with its lights on. The officer testified that the Hummer was in a “business” area in downtown Burkburnett, and none of the nearby stores or businesses was open at that time. He pulled in behind the Hummer, turned his spotlight on it, and ran the license tags, but he could not tell if anyone was inside because of the heavy tint on the windows. As he approached the Hummer, he saw Cynthia “laid over the seat, ” eating a hamburger; when she saw the officer, she sat up and rolled her window down. Although it is unclear whether Sergeant Klenk gestured to Cynthia to roll down the window, the trial court believed he did. At that point, Sergeant Klenk asked Cynthia for her driver’s license. Cynthia had to fumble around to find it, but she eventually did. Despite the odor of the hamburger in the vehicle, Sergeant Klenk could also smell the odor of an alcoholic beverage coming from the vehicle. Sergeant Klenk observed that Cynthia’s eyes were bloodshot and glazed. He asked her to step out.

Analysis

In her motion to suppress, Cynthia contended that Sergeant Klenk impermissibly detained and interrogated her based on an anonymous tip, that her statements to him should be suppressed, and that his warrantless arrest of her was impermissible. In its first issue on appeal, the State contended the trial court erroneously suppressed the evidence discovered during the interaction between Cynthia Priddy and Sergeant Klenk because it was a voluntary encounter and that Cynthia Priddy was not detained until after she rolled down her window and Sergeant Klenk smelled the odor of an alcoholic beverage, thus giving him reasonable suspicion to investigate her for possible DWI.

A Voluntary Encounter

In its conclusions of law, the trial court concluded that “[a]n officer does not need reasonable suspicion or probable cause before he talks to a person in a public place or asks questions.” But the trial court did not otherwise elaborate on whether Sergeant Klenk’s interaction with Cynthia Priddy was an encounter, an investigative detention, or both.

Cynthia Priddy points to Sergeant Klenk’s activating his spotlight and what she characterizes as an order to her that she “needed” to roll down her window as showing that their entire interaction was an investigative detention, for which Sergeant Klenk did not possess reasonable suspicion.

The court found no no evidence that Sergeant Klenk activated his patrol car’s overhead lights or its siren when parking behind Cynthia Priddy’s Hummer, nor is there any evidence that he blocked her egress from where she was parked. Likewise, there is no evidence that when Sergeant Klenk approached the vehicle and gestured to Cynthia Priddy to roll down the window that he engaged in any activity that would have indicated to Cynthia that she was being detained or was not free to terminate the encounter.

The court concluded that up to the point when Cynthia Priddy rolled down her window and Sergeant Klenk smelled the odor of an alcoholic beverage, Sergeant Klenk’s actions were justified as a voluntary encounter.

Reasonable Suspicion for Detention

Once Cynthia Priddy rolled down her window and Sergeant Klenk “smelled the odor of an alcoholic beverage emitting from the vehicle” and saw her bloodshot and glazed eyes, the voluntary encounter became an investigative detention based upon reasonable suspicion that Cynthia had been driving while intoxicated. Thus, after that point, Sergeant Klenk was authorized to detain Cynthia Priddy for the purpose of investigating whether she had been driving while intoxicated, and the trial court abused its discretion by granting appellee’s motion to suppress.

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1. A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
2. Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
3. If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person’s immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.

What Does it Mean?

That is the statute and it may seem straightforward enough; but it is much more complicated than it may appear. Over the years the courts have decided volumes of cases interpreting each element of the dwi statute. Those interpretations play a large role in determining your guilt or innocence for dwi in The Woodlands.

For example, what exactly is a “public place?” What exactly is “operating a motor vehicle?” As part of your defense, your Woodlands DWI Lawyer should review the latest judicial opinions to evaluate your case. Call (832) 426-3913 to speak with a Woodlands DWI lawyer and take the first step in protecting your rights today.

The Penal Code

(1) “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.

(2) “Alcohol concentration” means the number of grams of alcohol per:

(A) 210 liters of breath;

(B) 100 milliliters of blood; or

(C) 67 milliliters of urine.

What Is Probable Cause?

Probable Cause is a legal term used to determine if the police had a sufficient legal justification to stop and question you. The Constitution places limitations on the authority of police to stop and question people, they must have some reason for doing so. If police cross the legal line of questioning people without valid legal authority then they risk evidence being suppressed at trial.

The Facts of the Alderete Case

On November 5, 2007, at approximately 3 a.m., two officers were traveling west on Interstate 10 when they observed Alderete driving a Jeep Cherokee in front of them, in the same lane. As they followed Alderete, Officer Alegre observed her swerving inside the lane. Traffic was light, but the officers could not recall whether Alderete came close to contacting or endangering another car. The officers could not recall how many times they saw the vehicle swerve, but after following Alderete for half of a mile, Officer Alegre noted she was unable to drive in a straight manner and stay within the lane. Consequently, the officers initiated a traffic stop, not because she violated the traffic code, but because she was swerving within her lane at a late hour, which based on their experience, indicated that she was intoxicated.

Based on the testimony presented, Alderete asserted that there was no evidence of intoxication and that swerving within a lane is not a traffic violation; thus, she asked the trial court to grant her motion to suppress on grounds that the officers lacked authority to initiate a stop. The State disagreed, arguing that although a traffic code violation may not have been committed, the officers had reasonable suspicion to stop Alderete for driving while intoxicated. The trial court agreed with Alderte. In its findings of fact and conclusions of law, the trial court found that the officers’ testimonies were credible, but concluded that Alderete’s swerving within the lane was not a traffic code violation and therefore, that the officers lacked authority to initiate a stop.

Discussion

On appeal, the State asserts in a single issue that the trial court erred by granting Alderete’s motion to suppress. According to the State, the officers did not need to find a violation of the traffic code before stopping Alderete as they had reasonable suspicion to initiate a stop for driving while intoxicated when, in light of their training and experience, Alderete swerved within her lane, at a late hour, for half of a mile, which indicated that she was intoxicated. Alderete responds that no traffic violation occurred and her swerving within the lane, at a late hour, was insufficient to provide reasonable suspicion that she was driving while intoxicated.

Applicable Law

A law-enforcement officer is justified in detaining a person for investigative purposes if the officer has a reasonable suspicion to believe the individual is violating the law. “Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.” The reasonable suspicion determination disregards the subjective intent of the officer making the stop and looks solely to whether there was an objective basis for the stop

Application

Here, the trial court concluded that the officers lacked reasonable suspicion to stop Alderete because her swerving did not violate the traffic code. However, there is no requirement that a traffic regulation must be violated in order for an officer to have sufficient reasonable suspicion to justify a stop of a vehicle. Rather, an officer may be justified in stopping a vehicle based upon a reasonable suspicion of driving while intoxicated, which is a penal offense. In this case, Officer Garcia testified that Alderete was stopped not because of a violation of the traffic code, but based on suspicion of intoxication, an argument articulated by the prosecutor and implicitly rejected by the trial court.

The record reflects that the stop occurred at 3 a.m., and Officer Garcia testified that most driving-while-intoxicated offenses occur between 9 p.m. and 7 a.m. Alderete was unable to drive in a straight manner as she swerved within her lane for half of a mile on the interstate, a much longer period of time than the few hundred yards observed in Curtis.

Both officers testified that they were trained to detect individuals driving while intoxicated and that weaving is a common characteristic of intoxicated drivers. Finally, both officers stated that they received training in investigating driving-while-intoxicated offenses and had in fact investigated many such offenses. When viewing the totality of the circumstances and considering the officers’ collective training and experience in investigating driving-while-intoxicated offenses, the Court of Appeals found the officers could have formed reasonable suspicion to stop Alderete on suspicion of driving while intoxicated when she continuously swerved within her lane for half of a mile in the early morning hours.

Accordingly, the Court of Appeals held that the trial court’s focus on the sole issue of weaving within the lane not giving rise to a reasonable suspicion that a traffic-code violation was committed, was error in that the court failed to consider whether the officers had reasonable suspicion, based on the totality of the circumstances, that Alderete was driving while intoxicated. The Court of Appeals therefore found that the trial court abused its discretion by granting Alderete’s motion to suppress.

Timi Yvette Herring accidentally gave up one of her important Constitutional rights and let’s take a look at how it helped her get convicted and lose her appeal.

Background

Officer Kris Tyler stopped Herring for running a stop sign. He smelled alcohol on Herring’s breath and noticed Herring’s eyes were bloodshot and watery. According to Tyler, Herring admitted she had been drinking and failed field sobriety tests. Herring consented to a breath intoxilyzer test, but the result showed “interference.” After Herring consented to a blood draw, Tyler transported her to a local hospital and requested a blood draw.

On July 30, 2007, the State gave notice to Herring that a certificate of analysis and chain of custody affidavit (the affidavit) for Herring’s blood test results had been filed. Herring did not file any objections to the affidavit or the results of the blood test. At trial on September 18, 2008, the State offered the affidavit and a laboratory report indicating the results of the testing performed on the sample of Herring’s blood showed a blood alcohol level of 0.12. Among other objections, Herring objected the blood test results violated her right to confront the witnesses against her and that the State failed to lay the proper predicate for admission of the results by failing to establish a registered nurse in good standing conducted the blood draw. The trial court admitted the results of the blood test and found Herring guilty.

Confrontation Clause

Herring asserts the admission of the blood test results and the affidavit violated her right to confrontation under the Sixth Amendment to the United States Constitution.

The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.” U.S. Const. amend. VI. This procedural guarantee bars the admission of testimonial statements of a witness who does not appear at trial unless the witness is unavailable to testify and the defendant had a prior opportunity to cross- examine the witness. Affidavits reporting the results of forensic analysis are testimonial statements, and the analysts who performed the tests are witnesses for purposes of the Sixth Amendment.

Therefore, absent a showing the analyst was unavailable to testify at trial and that the defendant had a prior opportunity to cross-examine the analyst, a defendant is entitled to be confronted with the analyst at trial. However, a state may enact procedural rules in the form of notice-and-demand statutes that “require the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst’s appearance live at trial.”

Texas’s notice-and-demand statute is contained in articles 38.41 and 38.42 of the code of criminal procedure. Certificates of analysis of physical evidence and chain of custody affidavits are admissible without a witness appearing at trial if they are filed and served on the opposing party more than twenty days before trial begins and the opposing party does not file a written objection by the tenth day before trial begins. A defendant waives any objection under the Confrontation Clause to the admissibility of the certificate of analysis or chain of custody affidavit by failing to timely object under the statute.

Here, the State filed the blood test results and the affidavit more than twenty days before trial began. Herring did not timely object to the affidavit or the blood test results. Accordingly, she waived any objection that the admission of the affidavit or the blood test results addressed by the affidavit violated her confrontation rights.

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