The key to fighting your DWI is a thorough investigation that starts with gathering ALL the facts.

 

I start with your free confidential strategy session which takes about an hour. I’ll examine your medical history, because often medical conditions will affect your performance on field sobriety test and breath test. I’ll examine your vehicle to determine if a mechanical problem caused the police to single out your vehicle.

As a former prosecutor I know how crucial it is to obtain copies of the San Antonio police report or Bexar county police report and video, making sure that the video shows what the police report says. This strategy includes a background investigation of the arresting officer to determine whether the officer is qualified to administer the Standardized Field Sobriety Test and/or Intoxilizer. I’ll examine maintenance records to ensure the machine was working properly. I often visit the arrest scene to take pictures or video if necessary to use at the trial. I have done extensive review of the Texas Transportation Code and case law to ensure the officer had a reason to pull you over. If the officer did not have adequate suspicion or probable cause, I can get your case DISMISSED. I’ll represent your interest at the ALR hearing, pinning the officer down to testimony he’s not prepared to give. I know how to choose a fair and impartial jury who understands that officers make mistakes.

Officer Tests Explained

Officer SFST Certified

Part of the SFST’s are considered scientific evidence. In order for portions of the SFST’s to be admissible, it must be shown that the scientific theory is valid, that the tests were conducted according to standards, and that the test was administered properly. Part of proving the validity of an individual SFST is showing that the cop is certified by the Texas Commission on Law Enforcement Officer Standards and Education to administer the SFST.

In September of 2007, as a result of an audit conducted by NHTSA, Texas began requiring officers to become certified every two years to administer the SFST. After viewing thousands of DWI videos, Ashley Morgan understands why Texas made this drastic step. The fact is, most cops take the SFST course and throw away the manual, relying on memory to conduct these exercises which have detailed instructions. As a result, the SFST’s began to be worthless as evidence.

Many police departments for the most part have ignored this new law and officers are not re-certifying themselves. Ashley Morgan will track down the cop’s education records and if warranted, prove to the court and the jury that the arresting officer is not qualified to give the tests, and as a result, the SFST is nothing more than a meaningless exercise.

Horizontal Gaze Nystagmus

The HGN is supposed to be the most accurate of the three test battery. The HGN test requires the cop make a medical diagnosis that a person displays HGN. Nystagmus is the involuntary jerking of the eye. A person’s eye is supposed to track an object smoothly, imagine a marble on a glass table-top. Nystagmus is where the eye cannot track smoothly – that is, the eye jerks rather than moves smoothly when tracking an object. There is absolutely nothing a person can do to control Nystagmus.

NHTSA seemed to ignore that there are many different types of Nystagmus and at least 38 different causes of Nystagmus! Alcohol is but one of the causes of HGN. Many people have Nystagmus naturally, with or without alcohol. One of the theories behind HGN is that when a person drinks, the alcohol affects the central nervous system which controls Nystagmus, rendering a person’s body incapable of controlling Nystagmus.

The cop is looking for six things when conducting the HGN test :
Lack of Smooth Pursuit in the right and left eye
Nystagmus at Maximum Deviation in the right and left eye
Onset of Nystagmus prior to 45° in the right and left eye

To determine if a person has Nystagmus, the cop will have the test subject stand with their feet together, arms at their side, and instruct them to keep their eyes on a stimulus, normally a pen or flashlight. The cop will instruct the test subject to keep their head still and follow the stimulus with their eyes and their eyes only. The cop will then begin the test.

Most officers do not administer this test correctly! There are many steps to this part of the SFST. The officer must begin on the test on the correct eye, and must time the passes of the stimulus correctly. I will track down and expose and attack improper administration of this test and get this portion of the test excluded from evidence if the facts warrant exclusion from evidence.

For more information on the HGN, feel free to contact the Ashley and ask questions.

One Leg Stand

The One Leg Stand is the final test in the SFST battery and one of the most difficult. This test asks a person to stand on one leg, with the other leg six inches off the ground, keeping arms down at the sides, and counting out loud for thirty seconds.

In fact, this test according to the NHTSA study is only 65% accurate!!!!! That is, the test itself gets a D when determining if a person has an alcohol concentration of .10 or more.
Do you think the I.R.S. would be satisfied if you only paid 65% of your taxes?
I didn’t think so.

Now, let me ask, when was the last time you stood in line at the grocery store, standing on one leg, with the other six inches off the ground, counting out loud?? Probably NEVER. How in the world does this test a person’s ability to drive or the normal use of mental and physical faculties???? It doesn’t. There’s only one animal in which this test is “normal”.

As with the Walk and Turn, this test has three phases, the Instruction phase, Demonstration Phase, and the Balance/Counting Phase. There are four things the cop is looking for:

Sways While Balancing
Uses Arms for Balance
Hops
Puts Foot Down

The cop only needs to see two clues to make an arrest decision. Hopefully, after reading this short opinion on the One Leg Stand test, you’ll opt out of participating in this test if requested to do so. Keep in mind, the officer only needs two of the above clues to arrest you. This is an exercise designed to obtain evidence to USE AGAINST YOU.

I will expose any improper instruction, demonstration, or improper scoring and chew the cop up on the stand, exposing the inaccuracy of your One Leg Stand test.

For more information on the One Leg Stand, feel free to contact Ashley Morgan and ask questions.

Walk & Turn


The Walk and Turn test is quite comical in my opinion. It only takes two “clues” for the cop to make an arrest decision. This test has over 100 opportunities for the cop to see a “clue”. Giving NHTSA the benefit of the doubt, let’s say this test has only 100 opportunities to display a “clue”. Does it seem fair that you can score a 98% on this test and still fail it????

I didn’t think so.

In fact, this test according to the NHTSA study is only 68% accurate!!!!! That is, the test itself gets a D when determining if a person has an alcohol concentration of .10 or more. Would you be satisfied if your child came home with a D on his spelling test?

I didn’t think so.

This test asks a person to walk eighteen heel to toe steps with their arms at their sides, counting each step out loud. Now, if the test is designed to judge normal use of mental and physical faculties, why would they use this test??? For example, think about the last time you walked to the bathroom, was it heel to toe? Were your arms at your sides? Were you counting out loud? Were you looking down at your feet?

I didn’t think so.

Essentially, there are three phases to this test. The instruction phase, demonstration phase, and the testing phase. During the instruction phase, the officer is going to ask the test subject to put his right foot in front of his left foot, arms down at the sides, not to begin until told to do so, and to maintain that position until told to begin. What most people don’t realize is that the grading has already begun. If you get out of position, it’s a strike against you. If you raise your arms more than six inches, it’s a strike against you. You’ve already given two clues, failed the test, and are on your way to jail, and the testing phase hasn’t even begun yet. During the demonstration phase, the officer will demonstrate the test, normally using three steps going, the turn, and three steps back.

During this portion of the test, the subject is expected to listen, watch, and comprehend the instructions, while standing in an unnatural position. Often, the officer botches these instructions and demonstration, leaving the person to perform the test with faulty instructions. It doesn’t matter to the cop that night if he got it right, he’s getting the arrest regardless if he does the test right.

There are 8 clues to the walk and turn, they are:

Starts Too Soon
Loses Balance During Instructions
Stops While Walking
Doesn’t Touch Heel To Toe
Steps Off Line
Uses Arms For Balance
Improper Turn Or Loses Balance During Turn
Incorrect Number Of Steps
Hopefully, after reading this short opinion on the Walk and Turn test, you’ll opt out of taking this test if requested to do so. Keep in mind, the officer only needs two of the above clues to arrest you. This is an exercise designed to obtain evidence to USE AGAINST YOU.
Ashley Morgan will expose any improper administration of this test and attack the cop on the stand at the ALR and the trial. For more information on the Walk and Turn, feel free to contact Ashley Morgan and ask questions.

Standardized Field Sobriety Tests (SFSTs)

The one thing to remember is the Cop is never going to ask you out of your vehicle to admire your shoes!!!! If the cop has already asked you how much you’ve had to drink tonight, and then asks you to get out of the car, chances are pretty good that he wants to “see if you’re okay to drive”. Officers are people too, so they think that “DRINK, DRIVE, GO TO JAIL” is the law. For many officers, the arrest decision has been made at this point. Since the decision to arrest has already been made, the SFST’s to these cops is nothing more than an effort to obtain evidence to use against you.

The Standardized Field Sobriety Tests are typically the third phase in a DWI investigation. THESE TESTS ATTEMPT TO JUDGE THE USE OF NORMAL MENTAL AND PHYSICAL FACULTIES USING ABNORMAL MENTAL AND PHYSICAL TESTS!!!! ALWAYS REFUSE TO TAKE THESE AGILITY EXERCISES!!!! In short, these exercises are designed for you to fail. Many people can’t do these exercises with absolutely no alcohol in their system.

National Highway Traffic Safety Administration (NHTSA) conducted a series of studies to determine intoxication in drivers. As a result of these studies, a three test battery resulted. The SFST battery consists of the Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT) and the One Leg Stand (OLS). The SFST’s are used to determine if a person has an alcohol concentration of .10 or more.

The first fallacy of the tests is that the tests as conducted by the studies are looking for .10 – not .08 (the legal limit in Texas). Moreover, these “studies” were conducted in controlled environments where there is no traffic whizzing by, ideal weather conditions, and the tests were administered with flat smooth, surfaces and officers who were certified as SFST instructors – not the average cop. These studies are touted by the State as being accurate and reliable. Ashley Morgan will show otherwise. If any element of the SFST’s is changed in the administration of the SFST – the results of the test are compromised. I will sniff out second by second, frame by frame, to ensure that the test was administered according to NHTSA standards.