Texas v. L.S.

.168 BLOOD TEST. This case was won on pure operating as we stipulated to her intoxication. Client was a single mother that worked all day and then came home to feed her sons. She went to a guys house that she had been on two dates with. She parked on the street and they went to the Madonna concert. She apparently had a great time and drank a lot. When she got back, she testified that she already had 2 children and was trying to be a “good girl,” so she didn’t want to spend the night. She walked out, turned her car on for the heater and slept in her car. An off duty EMT, who is married to an HPD officer, was coming home around 530am and saw her parked there. He testified her car was in the intersection, with her foot on the brake and car in drive. This EMT spent 45 minutes with the DA before testifying and came up with these facts which weren’t in the Offense Report. The DA was playing games and waived their opening, so I saved my cross of the EMT for my case in chief. This meant the State had to call their next witness, the Officer. I knew the Officer was well trained and an expert in various aspects of DWI. I was able to use him as an expert against the EMT. The Officer testified he knew how to write reports and even took classes in report writing. He also admitted that had someone told him foot on brake, car in drive, he would have certainly written that down because that defines operating a motor vehicle. The kicker: the Officer only barely showed up and had to take the stand immediately. No time to be woodshedded by the State. He was great for us. He also admitted that the back side of her car was close to the curb and the client was on the curve of the residential street. After that, we stipulated to the blood and intoxication. Client was seen on video stating she wasn’t driving from the moment they pulled her out all the way down to the station. The jury just needed to decide whether it was considered operating a motor vehicle to stay in your car and not drive and just use it as a heater while you slept. I argued, this is what we tell people to do, sleep it off, don’t drive. Also, can you imagine how many DWIs there would be just by people starting their car while intoxicated. It’s called DRIVING While Intoxicated. Thankfully the jury came back with a swift and just verdict of Not Guilty and sent this young mother back home to her family. Thank you to that jury for not defining operating a motor vehicle as just sleeping in a running car.