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By Jim Schutze
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"David is able to distill the essence of a case to the current knowledge known about alcohol relating to breath and blood," says Wimbish, who spends many afternoons at the county courthouse testifying for a number of defense lawyers at a rate of $120 an hour. "David deals with the facts. He is a pretty good scientist."
Burrows also uses science to attack the field sobriety tests—that series of balance and mental acuity exams that officers ask drivers like Andrea to perform at the roadside. Officers will testify that the tests are accurate and backed up by studies conducted by the National Highway Traffic Safety Administration. Burrows has his own expert to counter a failed sobriety test—a former police officer and Texas Alcoholic Beverage Commission commander named Dexter Simpson.
According to NHTSA, a simple test like watching to see if a suspect's eyes follow a moving light smoothly or if they jerk—called the horizontal gaze nystagmus test—is an accurate measure of drunkenness up to 95 percent of the time. Not quite, Simpson testified in a recent Burrows case. Both Wimbish and Simpson have delved into the NHTSA's own data to find, they claim, that the test produces false positives 59 percent of the time.
Like Wimbish, Simpson has made a career out of testifying as an expert on behalf of defense lawyers in DWI cases. He's even written a book, The DWI Conspiracy, alleging a plot in the manipulation of the field sobriety tests that result in the faulty arrests of thousands of innocents—though Burrows doesn't bring up the book at trial.
"We respect the court system," Simpson says. "We just beat it every chance that we get, because it's defeatable. I shouldn't be able to win these cases like this. It should be difficult, but it's not."
At least for now.----
It's St. Patrick's Day no-refusal weekend, and Senior Corporal Bobby Watkins, a member of the Dallas DWI squad, is on duty Saturday night. Only 15 minutes after pulling out of central headquarters, he's called to where a possible drunk driver was stopped heading the wrong way down a one-way street. At the scene, an Expedition is parked on the sidewalk on Elm Street. The woman behind the wheel is wearing a festive, bright green T-shirt.
"We're doing blood tonight," says Watkins, a cheerful cop with a whisper of a voice, as he parks his squad car. He directs a spotlight into the windshield of the Expedition and walks over. The sobbing woman has red hair stuck in clumps to her face. Watkins asks how much she's had to drink. "Two drinks," she says. "Oh, two drinks?" he repeats. (On the way over here, Watkins told me that virtually every driver he faces says they had only two drinks.) The woman's left leg is in a splint, and she limps away from her car at Watkins' request. Between sobs, she says she is a single mother of three.
Watkins tells her to hold the grill of the squad car while he performs a series of field sobriety tests. He's looking for at least four clues that she's drunk. Counting backward from 48 to 33, she skips 45. She recites the alphabet correctly. Then he asks her to focus on a red penlight as he moves it broadly to one side and back. Her light eyes follow it. Her mascara has run and collected to form a smudged ring below her eyes. He sees her eyes jerk during the eye test. Next, he removes a portable breath machine. He can't use the reading in court, but it helps to confirm his decision to arrest the woman. She scores 0.184.
She's placed in handcuffs and starts squirming because her bladder is full. She needs to go now, she complains, but there's nothing but a vacant parking lot and multi-storied garage nearby. As Watkins fills out more paperwork, urine collects in a pool below her sneakers.
In the Dallas Police Department, there are usually 10 officers on the DWI task force specializing in DWI cases. The squad knows what it takes to win at trial.
"We're building a case right from the start," Watkins says as he drives to the jail, where the single mother will be booked and have her blood drawn. "If you arrested this person, you got them off the street. That's a win-win for us and for the citizens of Dallas. But once you get them in the jail, and they refuse to give samples, even though they had six clues, then they win the prize."
Watkins says that everything he does in the field is geared toward a future trip to the witness stand. First, he determines if there is enough reasonable suspicion to stop a car—say, driving the wrong way down Elm Street. Next, he uses his senses. "What do you see? What do you smell? What do you hear? You see bloodshot eyes. Or you ask for their license, and they hand you a credit card. Or they are fumbling with the license and dropping it on the floor." Then, "What do you smell? Alcohol." Finally, "What do you hear? 'Officer, I had two beers.' Well, maybe they did, but then they are giving you inconsistent statements." The woman in green says she had her first drink at 7, but then says she had her first drink after leaving her house, which was at 4 p.m. So Watkins asks her again, and she says 5.