22 Jan 2014
This past summer a man was reportedly driving a black BMW recklessly along IH-35 near Jarrell. A witness said he saw the car swerving, running red lights and speeding up to 100 miles per hour. A trooper from the Texas Department of Public Safety pulled the car over, and the driver turned out to be the public information officer for Williamson County, Lt. John Foster of the Williamson County Sheriff’s Department. The trooper says he smelled alcohol coming from the vehicle, but that Foster initially denied having anything to drink. He says Foster later changed that story, amending it to one beer and one vodka. In the meantime, the trooper administered field sobriety tests (FST’s), and eventually arrested Foster and charged him with driving while intoxicated. After being taken to jail, a breath test was administered, and police say the suspect’s blood alcohol content (BAC) was 0.09, above the legal limit of 0.08.
There are a number of interesting aspects of the case, including the officer allowing Foster to go back to his car after the administration of the field sobriety tests (FST), even though the trooper thought Foster was drunk, and knew he had a gun in his car. The trooper also turned off his microphone after conducting the FST’s, in violation of DPS policy. But while these issues, as well as the identity of the driver, may be noteworthy, the primary issue from a legal point of view involves the administration of the FST’s.
Standard field sobriety tests, as developed and approved by the National Highway Traffic Safety Administration (NHTSA), include only three tests: HGN (horizontal gaze nystagmus); walk and turn; and one leg stand. NHTSA says that it approves of these tests because, so they claim, “failure” is an indication of intoxication. The one leg stand and the walk and turn measure balance, and to a certain degree following directions. HGN is an involuntary eye movement that can be affected by alcohol use.
Getting back to Lt. Foster, a hearing took place last week in his DWI case, during which his attorneys argued for a dismissal of the DWI charge against him. The basis for the dismissal argument was that the trooper administered two of the three parts of the NSG test, but admittedly forgot to administer the third. The three parts of the test involve (1) the ability of the eyes to follow a moving object smoothly; (2) jerking of the eye when the eye is at maximum deviation; and (3) the angle of the eye when jerking begins. The NHTSA says that if four or more clues appear between both eyes, the suspect “likely” has a BAC of 0.08 or higher. The defense argument, basically, is that because the test was incomplete, this skews any results of the FST’s.
It’s an interesting argument, but you may be wondering, with the results of the other tests, including the breath test, why it’s such a big deal in the case. The reason is that the FST issue is being raised at this point not to show the evidence doesn’t warrant a conviction. It is being raised because the FST’s in this case were used to establish probable cause for the arrest. If the FST administration was flawed, the defendant argues, then the arrest was invalid, and any evidence obtained after the arrest, including the breath test results, should be inadmissible at trial.
We’ll keep an eye out for further developments in the case.
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Austin, TX 78701
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