San Antonio Injury Attorney Blog

In our last blog entry, we discussed some ways to attack the validity of the Horizontal Gaze Nystagmus (HGN) test.

During a jury trial, the jury will review the video, but it is highly unlikely that they can pick up the subtle bounce or nystagmus of the eye from the video. They are essentially relying on the officer's testimony that he witnessed clues of intoxication related to nystagmus. A jury will be extremely doubtful of the officer's observations, if a Bexar County DWI attorney can demonstrate that the officer has written reports with mistakes, that his testimony differs from the video, and that he did not perform the HGN test according to NHSTA specifications.

An especially strong tactic is when the officer claims that the driver was swaying and unable to stand steadily. Well, the inevitable question when an officer testifies like this, is how on earth he could possibly estimate a 45 degree angle for onset of nystagmus if the driver is swaying? The officer will either claim he could detect the nystagmus before a 45 degree angle was reached on a person moving back and forth or that somehow the driver was able to stand still throughout the HGN field sobriety test. The officer will inevitably contradict himself and the jury will cast doubt on his credibility. Any swaying during the HGN will ultimately render the HGN test invalid. If the officer contends the driver was swaying but then remained still during the HGN test, the jury will question whether in fact the driver was intoxicated if he was able to stay still during the entire administration of the HGN test.

Another key weakness of the HGN test brought out by the DWI video is that very rarely does the driver give his permission for the officer to do the test. Nor does the officer ever ask the driver. The officer will ask innocently if he can check the driver's eyes without telling the driver that he is in fact administering a field sobriety test. Ultimately, a driver has the right to refuse any and all field sobriety tests, and jurors will interpret the officer's actions as being underhanded and unfair.

The NHSTS had indicated that nystagmus is not necessarily a product of intoxication and can in fact be attributed inner ear infections, brain tumors and brain damage. More likely than not, the officer will not take the time to see if the driver may have had any of these conditions. Nystagmus is attributable to many different factors, and it does not follow that intoxication must have been what caused the eye to bounce. A Wilson County DWI attorney can effectively cross-examine an officer on the HGN test and negate any inferences of intoxication.

In our last blog entry, we discussed the basics of the Bexar County HGN Sobriety Field Test . In this blog entry, we will now discuss some inherent weaknesses of the HGN test as a test of intoxication. A seasoned San Antonio criminal defense lawyer will be able to employ certain techniques to demonstrate to a jury the inherent weaknesses of the HGN test as a test of intoxication.

There are certain time periods in the NHSTA manual regarding the administration of the HGN test that must be followed. Specifically, there is a certain length of time that must be met in the "smooth pursuit" test as the officer moves the flashlight in front of the driver's eyes. When the officer directs the flashlight to the side, that light must be held at maximum deviation for a specified time. A well trained Bexar County or Wilson County DWI lawyer will scrutinize the DWI video and make sure the tests are done within the proper time parameters according the NHSTA standards.

We know that under the HGN test, there can be up to 6 clues of intoxication - three (3) clues in each eye. According to the NHSTA manual, when four (4) or more clues are present whether it's through lack of smooth pursuit, a distinct nystagmus, and onset of nystagmus before a 45 degree angle, the HGN is accurate a little over 75% of the time. This 75% rate means that inherently the HGN test has a 25% rate of error when it comes to predicting intoxication. A 25% rate of error is certainly not a low enough rate of error in any juror's mind to demonstrate legal intoxication beyond a reasonable doubt.

A strong San Antonio DWI lawyer will also attack the statement of the NHSTA that a driver's Blood Alcohol Concentration is above .10, when there are at least 4 clues present during the HGN test. There is absolutely no scientific basis for such an assumption and such a statement is likely to be suppressed at a hearing.

When the HGN test is not performed per NHSTA specifications, then it is an invalid test and it can be argued that it is not valid evidence. A strong Texas DWI attorney will argue to a jury that incorrect performance of the HGN test renders any assumptions about intoxication clues worthless.

Another weakness in HGN administration stems from the presence of the patrol vehicle's overhead lights. The flashing of the overhead lights can alter the gaze and the arresting officer must admit that the flashing overhead lights will render the test invalid. In fact, facing traffic at night from passing traffic can also hurt the effectiveness of the HGN test.

There are also issues with estimation of a forty-five (45) degree angle on the driver's eyes. Exactly how does the officer estimate that the driver's eyes have reached a forty-five degree angle? The officer will counter by stating he can determine the angle based on the shoulder of the person. However, inherently, that is a bad way to estimate the 45 degrees because the distance between the head and the shoulders varies from person to person.

There is also the difficult question of exactly how the officer detects the nystagmus or the eye bounce - it is incredibly subtle. How good is the officer's own eyes - does he wear glasses or contact lenses?

In the next blog entry, we will continue to discuss additional ways for a San Antonio DWI attorney to attack the Horizontal Gaze Nystagmus Standard Field Sobriety Test.

In our last blog entry on general issues regarding Texas DWI SFSTs , we touched on the three (3) major field sobriety tests. Today, we will discuss the first major SFST. In Bexar County and surrounding Wilson and Atascosa County, a seasoned San Antonio DWI lawyer must deal with challenging the first major DWI Field Sobriety Test (SFST): Horizontal Gaze Nystagmus (HGN). During this SFST, an arresting officer will employ a flashlight and position the flashlight in front of a driver's eyes.

The flashlight is moved back and forth to test whether a driver's eyes will involuntarily jerk or bounce when the eye rotates far to the left or right. Physiologists call the bounce a nystagmus and the jerk of the eyes will usually occur to the left or right, making it a horizontal nystagmus as opposed to a vertical nystagmus.

According to the National Highway Traffic Safety Administration (NHTSA) Manual, there are three clues of intoxication related to the HGN test for each eye for a total of six (6) possible clues. The three basic HGN clues are a lack of smooth pursuit by the eye, a distinct jerking or nystagmus, and a jerking of the eye before it reaches a forty-five (45) degree angle.

With respect to a lack of smooth pursuit, the officer must determine the answers to the following basic questions as he moves the flashlight back and forth across the driver's eyes. First, can the driver actually follow the light in a smooth manner without the eye bouncing? If there is a jerk of the eyes, then that is considered a clue of intoxication. A common thread in every DWI report is the police officer's observation that he observed a lack of smooth pursuit in the eyes while conducting the HGN test.

The 2nd clue is whether the police officer detected a distinct jerking of the eye. The officer will position the light as far to the right or left as possible and hold the light there for several moments to determine if there is a distinct jerking of the eye. The magic words for the 2nd clue that police officers often annotate on their reports is a "distinct and sustained nystagmus at maximum deviation".

The 3rd clue is whether the jerking of the eye commences before the eye moves 45 degrees. If there is a jerking of the eye before the 45 degree angle, then that can be noted as another clue of intoxication.

In many San Antonio DWI cases, there may be a mention of vertical nystagmus (VGN), which would entail an up and down jerking of the eyes as they look up as opposed to HGN , the left or right jerking. No reliable scientific data exists on vertical nystagmus, even though the NHSTA manual states onset of VGN is a reliable demonstration of high amounts of alcohol or drug intoxication. A Bexar County or Atascosa County DWI lawyer can move to suppress this type of junk science on VGN since it does not have scientific reliability.

There are basic Standard Field Sobriety Tests (SFSTs) prescribed by the National Highway Traffic Safety Administration (NHTSA): the Horizontal Gaze Nystagmus (HGN), the Walk and Turn (WAT), and the One-Leg Stand (OLS). A San Antonio DWI lawyer will have a strong grasp of how Texas law enforcement is supposed to administer the tests and the specific vulnerable areas in each test that are open for challenge.

There are some basic general concepts regarding SFSTs. The SFSTs are constructed in such a manner so that the participant WILL fail them. Within a short time after the driver has exited the vehicle, law enforcement has already decided that the driver is intoxicated and only seeks SFSTs to convince a jury on video. The SFSTs must be administered by qualified law enforcement. A San Antonio criminal defense lawyer will obtain proof of certification from the Texas Commission of Law Enforcement Officer Standards and Education (TCLEOSE) . Moreover, active certification only lasts 2 years before the officer requires recertification. Therefore, there is the very real possibility that an officer is not properly certified to administer the SFSTs.

In our last blog entry, we discussed how San Antonio law enforcement will use distracting questions that are not DWI standard tests in order to see if the driver can perform different tasks at once. This "unusual" questions technique continues while the officer gets ready to administer the SFSTs. The officer will ask the driver to move to a different position before each SFST to demonstrate on video if the driver sways and stumbles while moving to a different area of the roadway.

Texas law enforcement will not make notations on the report that an allegedly intoxicated driver moved steadily without stumbling to different sections of the roadway to perform SFSTs - it is up to a Texas DWI defense lawyer to point out to the jury and on officer questioning that the driver was exhibiting signs of non-intoxication in his movements.

Whether the driver is intoxicated or not, the SFSTs have characteristics that make failure inevitable. The Bexar County District Attorney and SAPD will point out all the negative points concerning the driver's participation on the SFSTs - a strong Bexar County DWI lawyer must educate a jury about all the clues of non-intoxication.

In our last blog entry on phases of the Texas DWI Stop , we discussed Phase 1 (Vehicle in Motion) and Phase 2 (Personal Contact). When we left off, we discussed how a police officer will try to divide the attention of driver by asking distracting questions to see if the driver can handle "divided attention" tasks.

Another tactic which is not used by the San Antonio Police that much is to ask unusual questions. These are not standard tests - for example, a police officer might ask the driver to recite the alphabet from "F" to "Q" instead of the normal ABCs. Another unusual question is counting backwards from 79 to 60. The bottom line is than any jury member, when given such questions, whether or not they are intoxicated , would tend to get confused.

The "unusual question" test is not a Standard Field Sobriety Test (SFST) and a San Antonio DWI defense lawyer will use trial motions to have the court exclude such test. If these tests are not excluded, the officer will still be forced to admit under the National Highway Traffic Safety Administration (NHTSA) Manual, an inability to perform or answer such unusual tests / questions does not constitute probable cause for intoxication.

The next aspect of Phase 2 is the driver's exit from the vehicle. How the driver exits will give the officer certain cues as to intoxication that are usually captured on video and become part of the police report. If a driver literally has to crawl out of his vehicle or leans noticeably against his car once he exits, then such behavior become intoxication clues. However, if the vehicle itself is a mini sports coup, then climbing out of a vehicle is not necessarily a sign of intoxication. Propping up one's back against a vehicle may also be considered a normal thing to do. There have been instances where the DWI video will actually show an assistant police officer using his arms against the vehicle to support himself while the driver is being questioned.

In our next blog entry, we will cover Standardized Field Sobriety Tests (SFSTs) in which officers test a driver's balance and coordination as well as their ability to comprehend and execute verbal and physical instructions. If you have been charged with a DWI, contact a San Antonio DWI Defense attorney without delay to protect your rights and preserve key evidence.

In the majority of DWI cases in San Antonio, the Bexar County District Attorney usually has a video demonstrating the alleged offender performing a series of field sobriety tests with a breathalyzer score over the legal limit of .08.

Given these elements, you may feel that a San Antonio DWI lawyer has very little chance of obtaining acquittal. This blog entry will cover some aspects of how a DWI defense attorney can reveal the shortcomings of both the Standard Field Sobriety Tests (SFSTs) and readings from the Intoxilyzer-5000 breathalyzer.

Officers in the San Antonio Police Department receive their training on how to conduct DWI arrests from the National Highway Traffic Safety Administration (NHTSA)manual. This manual lists several important standards that must be met in order for officer to properly detect intoxicated drivers and properly conduct the SFSTs.

Many times, a Bexar County DWI lawyer will know the NHTSA manual better than the arresting officer, and the attorney can exploit the officer's lack of knowledge concerning proper administration of SFSTs.

There are three (3) specific phases of the DWI stop. The first phase occurs when the vehicle is in motion. The NHSTA manual lists twenty-four (24) visual cues of impairment. Yet many of these cues can be due to simple explanations like talking on a cell phone or changing out a CD from the stereo. These innocent explanations can explain why a car could be seen drifting. It is important to note that one of the 24 cues for drunken impairment is not speeding. On cross-examination, the officer will admit that a stop for speeding does not justify a DWI stop.

The second phase of the DWI stop is personal contact with the driver, where the officer can employ senses of sight, hearing, and smell. Read any DWI arrest report, and you will see some common trends. Invariably, the officer always states that he saw the driver with blood shot eyes ; he heard the driver slur his speech and state he drank a specific number of drinks; and the officer smelled alcohol on the driver’s breath or an odor of marijuana coming from the vehicle.

The video often demonstrates the officer asking the driver to exit the vehicle, but not before the "pre-exit" interview. During this phase of the officer's investigation, the officer engages the driver in a concept known as "divided attention". That is, the officer will request the driver to do multiple things at once, such as showing both the license and registration. The objective of the "divided attention" test is to determine if the person has issues concentrating on two or more things simultaneously, which may be a sign of impairment. Another common "divided attention" tactic is to ask the alleged suspect distracting questions such as where they were driving as the person searches for the license and registration.

A San Antonio DWI attorney will effectively be able to argue to a jury that any person, whether or not they are intoxicated, will stop searching for a license / registration when a police officer interrupts them or the person may stop searching when the officer asks another question. These are natural tendencies and do not signify a person is intoxicated.

As vaccines become more and more prevalent as a means of preventing illness and disease, we need to take a strong look at potentially devastating side effects from such vaccines.

Take for example the wonder drug known as Gardasil. Pharmaceutical juggernaut Merck has touted Gardasil as a significant step forward in the prevention of cancers, specifically cervical cancer. The majority of cervical cancers are believed to be linked to the Human Papillomavirus (HPV), in which HPV infections are suspected to be the major culprit behind cervical cancers and STDs such as genital warts.

The HPV vaccine is currently being given to girls and women between the ages of 9-26, and now Gardasil has recently become available to be used in boys and men between the ages of 9-26.

However, the data now seems to suggest that some girls who receive Gardasil to guard against cervical cancer may be at greater risk of contract Guillain-Barre Syndrome (GBS) , a rare neurological disorder that affects the peripheral nervous system. Individuals with GBS often experience paralysis that can start in the legs and slowly rise upwards to the upper body and face. In GBS, a person's immune system is essentially trying to destroy part of the person's nervous system.

A flu virus or illness can cause Guillain-Barre Syndrome (GBS) , but a vaccination or surgery can also create the conditions for GBS to occur.

In addition, there is research which now suggests that amyotrophic lateral sclerosis (ALS) or Lou Gehrig's disease may also be linked to Gardasil or the HPV vaccine. Lou Gehrig's disease is fatal and such a vaccine injury represents a wrongful death product liability suit . Researchers have determined that the timing of the ALS symptoms in conjunction with the receipt of the vaccine suggest a link between Gardasil and Lou Gehrig's disease.

Merck has denied any link between Gardasil and GBS , but the data suggests otherwise. The Vaccine Adverse Event Reporting System , a joint effort between the Food and Drug Administration and Centers for Disease Control , indicated an incidence of over 50+ cases of GBS following HPV vaccination in the last 3 years. An overwhelming majority of the cases developed within 6 weeks after vaccination, with about 20 cases or so developing within the first 2 weeks of vaccination. The onset of symptoms within 2-6 weeks after vaccination is a classic timeline for GBS. Although the risk is low, the association between vaccines and GBS has been known to be an after effect since the mid-70s swine flu outbreak.

There are several law firms that are well positioned to handle Gardasil vaccine injury cases. You need attorneys who are specifically licensed in the Federal Court of Claims and handle cases due to vaccine injury. If you or a loved one have suffered a Gardasil vaccine injury and you need a Gardasil HPV Vaccine attorney , contact a law firm immediately.

In the seminal case Berghuis versus Warden , the United States Supreme Court issued major changes affecting the invocation of Miranda rights. Specifically, the Supreme court led by Justice Kennedy ruled that a defendant must clearly invoke their right to remain silent ie. their Fifth Amendment right against self-incrimination. In the past, an accused could stay silent and this was enough to invoke the right to remain silent. No more...

Under the facts of Berghuis, the Court ruled that the defendant had to explicitly and unequivocally state to the arresting officers that he was invoking his right to remain silent. By NOT expressly invoking his right to remain silent, in effect the Supreme Court ruled that the accused was WAIVING his right to remain silent.

According to the facts, an accused Michigan man sat for three (3) hours in silence while officers interrogated him and then confessed to a murder. The question was whether the defendant's silence constituted an invocation of the right to remain silent, such that the confession was inadmissible. The Supreme Court ruled that under such circumstances, it would have been impossible for the officers to have determined whether the accused was invoking his Miranda rights. Since the Michigan man seemed to indicate his understanding of his right to remain silent and the officers did not coerce his confession, then in effect the accused waived his right to remain silent by making statements during the interrogation.

The question is ultimately whether sitting in silence for three hours under questioning by the police offers a clear message that the suspect did not wish to waive his rights. Under this Supreme Court decision, the answer is NO. The decision in this case has been criticized heavily. In order for criminal suspects to invoke their right to remain silent, they must speak, which runs counterintuitive to the "right to remain silent". Even more disturbing is the idea that suspects will have presumed their right to remain silent, even if they do expressly indicate their intention to waive the right to remain silent.

What does this mean for San Antonio and greater Bexar County Criminal Defense cases ? Essentially, you must clearly state to arresting officers of your wish to remain silent by saying something to the effect of "I am exercising my right to remain silent". It must be clearly stated from the BEGINNING - otherwise, a criminal defendant runs the risk of waiving his right to remain silent by making additional statements. This blog entry supplements our earlier blog entries, where we indicated suspects should SHUT UP under questioning.

See the following entries:

The WRONG Way to Handle a Police Stop in San Antonio Texas and Bexar County

What to Do on a Police Stop in San Antonio Texas and Bexar County

10 Rules for Dealing with Police in San Antonio Texas and Bexar County

Now, criminal defendants are encouraged to clearly state that they are exercising their right to remain silent and then SHUT UP. If you have any questions about the exercise of your constitutional Miranda rights, you should contact a San Antonio Criminal Defense Lawyer without delay !

In our last blog entry , we outlined the RIGHT way to handle a Texas police stop . Now, let us discuss the wrong way to handle a police stop with the aid of the following video:

Comments:

I cannot begin to tell you the number of things that these individuals did wrong on the video. Sadly, this is the norm for many of my clients, not the rule. Imagine being a student and having your federal college loans revoked because of a misdemeanor possession of marijuana charge ? Do you think the police magically obtain the evidence against you ? No, people empower the police by essentially waiving their constitutional rights.

People do not understand that if they can be charged with possession if an illegal item is found in their vehicle that does not belong to them .

Remember a basic common rule:

ILLEGAL ITEM + CONSENT = ARREST

In the video above, the teenagers committed several cardinal sins.

First, they acted nervously and the police seized on their fears.

Second, they would not shut up! They just kept talking and answering questions. Remember that being silent is a simple and direct way to assert your right to remain silent. This is a cardinal rule that is especially prevalent on San Antonio DWI Defense cases - the driver just keeps talking and talking , digging himself a deeper and deeper hole !

Third, the individuals consented to the search of their vehicle! Why would anyone in their right mind ever do such a thing ?

Fourth, the teenagers got tricked. They cowered under the police threat and gave in. Rather they should have recognized the police tactics for what they were - a hollow, empty means to intimidate them to forsake their constitutional rights !

If you have been charged with a Bexar County misdemeanor / felony, and you need a San Antonio criminal defense lawyer , then do not hesitate! In the meantime, make life easier for yourself and your criminal defense attorney by holding on to your right to remain silent and refuse consent on any searches.

UPDATE: Please read about this new Supreme Court Case on the right to remain SILENT and what you must do to protect it.

As I have handled more San Antonio criminal defense cases, I have come to the startling revelation that many of my clients would not find themselves in their current situation if they applied some basic rules when dealing with the police. If you are willing to remember some key points when dealing with the police, then you stand a far greater chance of either being released with a simple citation or being acquitted of all charges if you are actually arrested.

You can prevent a traffic stop from turning into a Bexar County misdemeanor or a misdemeanor from turning into a full blown San Antonio felony charge.

People have this naive idea that the police are willing to work with them, and if they simply explain the situation, the police will empathize and release them Wrong! The police are not your friends - think of them as the agents of the District Attorney's office. The job of the police is to build a case against you. Even the purely innocent must be wary of any statements made to the police. What if the police claim you stated something you didn't or they misinterpret your statements? Can you imagine a jury having to determine between a criminal defendant and a police officer as to who is telling the truth ? Who are they more likely to favor ? It is a no win situation and a lesson you should learn now as opposed to later.

Remember that the police may legally lie to you so never let them trick you into waiving your rights.

So in this blog entry, I will cover some basic rules on routine traffic stops that can become your worst nightmare if you do not follow some simple rules. With the aid of the following video, I will add some commentary to guide you through.

Review this first clip to see the RIGHT way to act with the police:

Comments:

Notice how one person takes control of the situation – ie. One person does all the talking.

By rolling up all the windows, the officers’ access to the car is limited.

When first dealing with an approaching officer, allways put your hands on the wheel in plain view

By asking why he was pulled over, the driver asserts his innocence.

In response to the question , “Do you know the speed limit ?" , the driver asserts his 5th amendment right against self incrimination and does not answer.

"Officer, how can I help ? " . This is a relatively easy way for the driver to be cool and courteous , a key rule to remember.

"Why officer?" Again, this question forces the officer in a corner. He must have probable cause to search the vehicle. It is interesting if he cannot articulate his reasons right then and there.

When asked to step out of the car, driver locks his doors. This makes it clear the officer does not have permission to search the vehicle.

“Are you detaining us officer or are we free to go ?” This is an excellent question.

Always ask if you can leave. The police must have some probable cause to detain you.

Make it verbally clear that you do NOT consent to any searches.

In these situations, the officer is NOT looking to help you.

What is the probable cause for detaining the occupants of a car ? There is none. It’s an idle threat.

Ask again if you can leave. Speeding does not constitute probable cause for a vehicle search.

What is the “next level” ? It is just police rhetoric designed to intimidate you into doing what they want.

The Supreme Court states that once you are cited, you are free to leave. If you stick around, it is on your own free will. Take the ticket and leave.

Did you notice the common thread in this situation ? The driver talked very little! Plus, he did not directly answer any questions. He simply asserted his right to remain silent and did not consent to any vehicular searches.

Knowing some of these basic rules can greatly assist you especially if you need a San Antonio DWI lawyer. Contact one today immediately if you have been arrested in Bexar County or surrounding counties such as Wilson County or Atascosa County.

UPDATE: Please read about this new Supreme Court Case on the right to remain SILENT and what you must do to protect it.