When Does a Houston Police Officer Have “Probable Cause” to Make a Drunk Driving Arrest?

May 15th, 2019 by Tad Nelson in DWI

DWI & drunk driving cases often begin with a traffic stop. In the process of citing a driver for a traffic violation, an officer may determine that there is “probable cause” to arrest and charge the driver with DWI. But can the officer arrest the driver based solely on the traffic violation and then conduct an investigation into possible drunk driving several hours later?

Divided Appeals Panel Affirms DWI Conviction

A divided three-judge panel of the Texas 14th District Court of Appeals here in Houston recently confronted this question. The defendant in this case, Scott v. State, was caught speeding by a Houston Police Department officer. The officer also observed the defendant driving through an intersection without stopping and failing to stop at another red light before making a turn.

According to the officer, the defendant “was slow to respond” when asked to produce his driver’s license and insurance information. The officer also said he “smelled the strong odor” of alcohol from the defendant, as well as noting the defendant’s “eyes were glassy.” The officer then asked the defendant to step out of his car, at which point the officer noted the defendant was “swaying.”

The officer was unable to administer the usual DWI tests at the scene. He therefore decided to take the defendant to “cental intox” for evaluation. About two hours later, another officer at central intox administered a breath analysis test, which revealed the defendant had a blood-alcohol content of around 0.126, which was above the legal limit.

At trial, the defendant argued the police officer arrested him without probable cause, i.e., transporting him to central intox without first conducting a proper DWI investigation. The trial judge determined the police officer did nothing wrong and denied a defense motion to suppress the results of the blood test. A jury ultimately found the defendant guilty of DWI, and he received one year of probation at sentencing.

On appeal, the three judges on the 14th District panel each issued separate opinions regarding the legality of the officer’ actions. The main opinion, issued by Chief Judge Kem Thompson Frost, noted that under the circumstances, the officer clearly “arrested” the defendant by taking him to central intox. So the question was then whether the officer had “probable cause” to arrest the defendant.

As Judge Frost saw things, it did not matter if the officer had probable cause to arrest the defendant for DWI. The undisputed evidence showed the officer observed the defendant committing three distinct traffic violations. That alone justified the arrest as far as Judge Frost was concerned.

Judge Tracy Christopher issued a concurring opinion. She pointed out that when an officer makes a misdemeanor traffic arrest, the officer only has two options–either release the defendant upon signing a “written promise to appear in court,” or take the defendant before a magistrate “immediately.” That did not happen in this case, as the defendant was then detained for several hours at central intox.

That said, Judge Christopher said there was probable cause to support a DWI arrest, which included not only the traffic violations but also the smell of alcohol on the defendant’s breath and his “swaying” upon exiting his vehicle. The fact the officer did not conduct any sobriety tests at the scene did not matter, Judge Christopher said, as “lay testimony” of intoxication can support a DWI conviction.

The third judge, Frances Bourliot, concluded the defendant was arrested without probable cause. She said the officer “conducted no investigation” at the scene and simply arrested the defendant based on the traffic violations. And as Judge Christopher explained, that meant the officer was either required to release the defendant immediately or bring him before a magistrate.

Speak with a Galveston or League City DWI Lawyer Today

Cases like this illustrate how unsettled the law can still be when it comes to drunk driving in Texas. That is why it is critical to work with an experienced Houston DWI defense attorney if you are facing these type of charges. Contact the Law Offices of Tad Nelson & Associates today if you need immediate assistance.

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