Tuesday, March 16, 2010

Contradicted Police Testimony, Faulty Recording, and Unreliable BAC Results - DWI Conviction Upheld

In Williams v. State, (released 4 March) the honorable justices of the 2nd District Court of Appeals (Fort Worth) assured the citizens of Tarrant County that DWI (whether apparent or perceived) will not be tolerated in their voting district. I encourage you to read the dissent of Justice Dauphinot (at the conclusion of the majority opinion HERE) to understand what I mean. Below are some excerpts in case you don't have the time to read the whole thing.

For some context, the appellant was convicted after officers testified that he failed a field sobriety test (including slurring speech), that the he passed out in the back seat of the patrol car, and that he registered a .097 on the breath test.  The majority, however, glosses over the facts that:

  • The officers failed to properly record the sobriety tests administered on appellant, by making sure that there was enough tape or that the microphones were turned on;
  • The audio recording that was made contradicts the idea that appellant was asleep or "passed out" in the backseat of the patrol car, because it contains appellant speaking to the officers in a quite lucid manner without any slurring of speech;
  • Appellant had vomited (from bad sushi he claims) minutes before the breath test, which render any results unreliable.

Here's what the dissent had to say:
Repeatedly, we are asked to review records of DWI stops during which there is no audio or video record of the event. Why do I believe there should be audio or audio and video record of the DWI stops? Because the law requires, and did so at the time of this stop, either an audio or audio and video record or the filing of a racial profiling report for each stop. See Tex Code Crim. Proc. art. 2.133-.135.  The City of Fort Worth has conscientiously provided the means for complying with this law.
An appellate court should give no weight to testimony that is disproved by the objective record of the actual events. And I believe that the majority should address the issue of an officer’s intentionally disabling the audio recorder and testifying directly contrary to the audio record.
At some point, courts must address the repeated failure of officers to use the recording equipment and their repeated inability to remember whether the car they were driving on patrol or to a DWI stop contained the video equipment the City of Fort Worth has been paying for. If the law requires recording to qualify for the exception to filing racial profiling reports, then is the officer not obligated to make sure that there is tape in a traditional video camera or that a digital camera is activated? When the actual recording conflicts with the officer’s testimony, the defendant’s testimony, or another witness’s testimony, a court cannot pretend that the emperor is wearing new clothes just because someone testifies that he is.