Two fold question: OC and speeding

[janisesb]

First off I live in Harris county Texas.

Here is my situation: I was at training for work, got out early went home, stopped at the store got 2 24oz cans of beer. Got home decided to work on the inside of my vehicle (small pickup) removing remaining bits and pieces glass from a shattered window I had gotten fixed the previous day.

Anyhow it was about 2pm in the afternoon. I drank one of my beers over the course of an hour while cleaning the vehicle. I had the can on one side, went around to the other side and finished working. I finished up, locked up the vehicle and went inside forgetting the can in the car.

I puttered around the house until about 7pm when a friend called me and invited me over. I grabbed the other can of beer, (unopened) jumped in the truck, laid it on the seat and proceeded to drive to my friends house across town.

As I exited the off ramp two police cars were at the bottom motioning people over for speeding, myself being one of them. I did not see that either of them had a radar gun. The speed limit on the freeway is 60mph the exit is 35mph. I pulled over as directed and the officer told me I was doing 59 in a 35 mph zone.

Then he noticed the beer can on the seat and then the other which was empty on the floorboard (or so I thought). He then proceeded to question me about drinking and I answered him truthfully of what I just stated above. He was not buying it because he said the vehicle reeked of alcohol. I was asked to get out of the car and he pulled the empty out and said that was against the law and said that I was drunk and driving.

I of course pleaded and protested (as nicely as possible because I was scared out of my wits as I never get in any kind of trouble ever!) and asked that he give me tests to prove I was not in fact driving while intoxicated. First he gave me the "follow the pen" test said I was moving my head and that I was drunk, again I protested that I was not I was just scared out of my wits and he stated that "the pen doesn’t lie".

Again I pleaded and asked for the leg test or some other test to prove my innocence. He then gave me the "lift one leg and count test", which I did counted to 18 perfectly as instructed without faltering an inch and finally he passed me as not being intoxicated. (Can previous head trauma make a person fail the eye/pen test?)

Anyway he took the can that he had taken out of my truck which I thought was empty and turned it upside down, approximately an ounce poured out onto the street. He then wrote me a ticket for having an open container and a ticket for speeding.

Ok so here are my questions: If the officer did in fact have a radar gun and was at the bottom of a inclined off ramp pointing up at approaching traffic, how does he or I know that he did not clock me at the beginning of the ramp where the speed is in fact still 60 mph? How typical is it for a vehicle to slam on its brakes exiting a freeway so as not to violate the approaching speed zone change? How far do you have to make that transition in speed? And how safe is it for the following vehicles behind you if you do have to in essence apply severe brake pressure to be in compliance with the sudden change in speed zones?

Secondly, I have read that the open container law in Texas does not apply to empty beer cans. However since there was a approximately 1 oz still in the can does this mean that I can not fight this ticket, notwithstanding the fact that 24oz is enough to make anyone legally intoxicated and even though I passed the intoxication tests? I realize that I probably wont be able to contest either ticket, so what do I have to look forward to in the way of sentencing and fines etc?

Any help would be appreciated. I am mystified at how I can go from an advocate of never having open containers in the car and drinking and driving (or keys in ignition) to being ticketed for essentially the very same offense. It is safe to say that I am not dealing well with being branded as an offender having been a model citizen all my life without so much as a blemish on my record until now (35 years). :(

[Scruit]

Your problem with OC is that there is gonna be disput on how much was in there. You could argue that you finished drinking it, and that when the officer upturned the can only the very dregs came out... And he is gonna say; "Enough came out that I believe the can was not empty."

Without any proof of how much was in there, you'll struggle to prove innicence of OC because you DID have an alcohol container and it WAS open and there WAS *some* in there, even if it was just the dregs.

(This is why I don't like the concept of sobriety tests - he was found to be intox by one test and not by another. That could have been a a very expensive mistake by the justice system had the driver not insisted on the second test...)

Remember that just because you got the ticket doesn't make you guilty. Go to the trial (may be worth a lawyer, depending on the potnetial penalty) and argue your case. If you record is clean and you can present yourself in a manner that convinces thejudge that you just left the can in the truck when you were cleaning it out earlier in the day then you could be find not guilty. Especially if you plead guilty to the speeding with a comment to the judge like; "Guilty on the speeding - I did it and I'm man enough to take my punishment for what I did."

Speeding - just bite the bullet on it - The law is the law, the limit is the limit and unless you wanna call the traffic engineer to the stand I don't think you're gonna win that one by arguing the reasonableness of the limit that was in force at the time.

[EricTheBald]

Take it to trial. Maybe they'll drop the OC for a guilty plea on the speeding ticket.

If not...

Make sure you look up the law.
In the law you are looking for how they defined OC and what any case law says.

One of the things you need to do at trial is see if you can get the cop to testify that a very small amount of beer came out of the can and that it could have been just backwash in a can you had finished with and thrown away.

If he says basically what you need him to, that it was a tiny amount such as an ounce or less, you're good. If not ask him how much it turned out to be when the lab measured it.

"What? You didn't have the beer measured?"

"Well, do you have it with you in a container?"

"No? Do you at least have the can?"

"No?"


Basically, you get him to admit that he just poured it out into the street.

The argument that you want to make to the judge is that even though you are in traffic court, not criminal court, the people still have SOME kind of burden of proof, no matter how reduced it is.

You point out that anyone who has ever drunk any beverage from a can knows that there is always some small amount left in the can, unless you make a real effort to get every last drop out.

You're claiming that the can was trash, he's claiming that you were still drinking from it even though he found it on the floor, but he can't present ANY evidence to support his theory.

If you get that information into the transcript then even if you get convicted you can appeal and you'll win.

[txinvestigator1]

In Texas, Municipal and JP courts are not courts of record. An appeal from one of these courts gets you a brand new trial in County Court.

[hwpd]

This is ridiculous to enforce speed on on-off ramps...
Do it upon the interstate then...

[EricTheBald]

Originally posted by txinvestigator1
In Texas, Municipal and JP courts are not courts of record. An appeal from one of these courts gets you a brand new trial in County Court.

Well then, new trial.


All I know is, when I do something wrong, I pay for it, but when I'm getting the shaft i fight back very hard.

[gdowkpc]

Sobriety tests are an excellent indicator if someone is .10 or above.

Here is the information on NHTSA about the 'pen test':

HGN

And read this link that says that if you fail the HGN test there is an 88% reliability that you are at least .10 BAC.

SFST validity

Now, I believe from the information provided that the officer was bluffing this person. Or, it is possible that he didn't know what he was talking about. Fro his comments, he said he was moving his head. The test cannot be performed correctly unless the tested subject holds his head still and only moves his eyes to track the pen.

As we know, persons under the influence have difficulty following directions. If you were unable to understand that you needed to keep your head completely still during the test, the officer may have surmised that you were intoxicated. The test itself would not have proved that, and the inability for a person to hold their head still doesn't necessarily prove a person intoxicated.

In summary, the problem was the officer bluffed intoxication looking for an admission, the officer performed the test improperly, or the tested subject failed to understand the instructions for the test and was assumed to be intoxicated.

I have only failed one person on fiels sobriety tests that dlew anything under .08. This person actually blew a .00, but was believed to be under the influence of an illicit drup since copious amounts of contraband were found in here car. Unfortunately, there was no drug recognition expert available. Other than that, I have had 100% success with the tests.

[janisesb]

First off not that it matters but I am female.

Anyway the pen test in my humble opinion bites. I did not move my head, and if I did it was a mere fraction of an inch if that. The part that made it difficult for me is that he moved the pen to my extreme outer peripheral vision and held it there (on my left side only) for about 5-8 seconds. He stopped and said “Mam stop moving your head” He then proceeded to do the test again, and again and again. I was having difficulty keeping my eyes focused and looking that far left of my field of vision and it was actually slightly painful. He moved the pen normally on the right side of my peripheral vision only holding it there for about 2-3 seconds and moving it back towards center. I think he saw that my eyes simply do not move that far to the left or something. I believe this problem with my vision is due to severe head trauma in the last two years.

The whole thing was very intimidating, he didn’t believe anything I said and kept calling me a liar, from my own address, to admitting drinking at my home to not being drunk and on and on. So in essence I guess it was his job to interrogate and attempt to draw out some sort of confession from me, the problem is that I had already confessed all there was to confess.

He seemed relieved however after the raise the foot and count test, maybe relieved it not the right word but resigned to the fact that I wasn’t drunk or even at the legal limit. I knew I wasn’t and I would have taken any test under the sun to prove it. I know that I can drink according to my gender and weight approximately 9 oz of beer an hour and stay under the legal limit and since I had drank 24 oz between 2 pm and 3 pm and it was then 7:30 pm that gave me 4 and half hours for it to dissipate in my system.

But that is all beside the point, the fact is, is that I had a can in the car that did elicit a small amount of alcohol when turned upside down, I cant dispute that or even defend it really. It was laziness on my part not to have thrown it away I guess so there is not much I can say to defend myself. It just sucks is all I really can say.

The ramp speeding ticket still has me confused. I just don’t see how you can expect people to suddenly and magically go from 60 to 35 mph in that short amount of a distance. I am assuming that you must slow down to near 35 mph on the freeway so that by the time you hit the ramp you are at legal posted speed. I don’t know but it just seems a bit dangerous to me, particularly for Houston traffic. But hey, I technically and legally was on the ramp and I probably was doing 59 mph so again there is not much I can do or say about it. I guess I have my insurance rates’ skyrocketing to look forward to, that is if they don’t drop me all together.

Anyways, I understand that there are a lot of people out there doing stuff they are not supposed to, and I respect the fact that it is the Police department’s job to get these people off the road. I just wish that I hadn’t been one of them caught up in their net.

Thanks for the replies, I gather there is not much I can do about any of it except throw myself on the mercy of the court. My luck I will get some angry feminnazi.

[gdowkpc]

I sense a learning opportunity here. I am sorry you are having all these diffilculties and it sounds like you are not a bad person. but, it's not up to me.

DUII is a serious problem in this country. 4 times as many die in wrecks with DUII drivers than by murder. You have a 1 in 3 chance of being invloved in a wreck with a DUII driver.

I don;t think you were legally drunk, so don't get me wrong there, but may I ask, since so many people get this answer wrong, if you were to drink the 24 oz can, what is the highest BAC level you think you would reach, ignoring all other factors?

[janisesb]

According to my calculations at the time I was stopped my BAC would have been about .02, theoretically I should have waited an additional hour and a half to allow my BAC to return to zero.

In answer to your question if I were to drink 24 oz in one hour my BAC at the end of that hour would be about .07? (This of course is based on my gender and weight) But is probably closer to .082 I think...

I don’t know what the highest BAC would be, not factoring weight and gender, just some calculations I did, so what is the right answer?

[gdowkpc]

It's interesting because the Oregon Dept of Transportation did a survery of residents here and 80% got the following question wrong:

Which one of these drinks will cause your BAC to increase more: a 12 oz can of beer, a glass of wine, or a shot of whisky?

The answer is a little tricky, but they are actually all the same. The Oregon Liquor Control Commission has led me to believe that this is intentional to help people calculate what their BAC is by the number of drinks they had at a bar or restaurant.

Each one of these will cause your BAC to increase by .02 (roughly).

So the answer to the question I posted before was your maximum BAC for a 24 oz can of beer would have been .04.

[neinta]

Janisesb, no one has addressed this yet but previous head trama CAN affect the outcome of feild sobriety tests, especially the "pen test". When I was younger, I hurt my head pretty bad. I now have nystagmus at maximum deviation (furthest peripheral vision) and sometimes have problems with balance. Basically, on the right day (or wrong depending on how you look at it) I can be totally sober - no drinks, no drugs - and still fail the FST's.

[gdowkpc]

Dizziness would probably be your clue.

Anyone can do this to see Nystagmus work. Simply spin a friend until they are dizzy. Have them try to stare straight ahead. Their eyes will show nystagmus. Dizziness is the original cause for such a thing. Alcohol was later discovered to affect the nervous system in such a way that they eyes will show nystagmus at at least .10. It's very convenient.

Anyways, if you feel dizzy and it seems difficult to focus on an object (your eyes are drifting) that's nystagmus. If your head injury makes you feel that way, then you would probably have a false-positive with the HGN test.

[janisesb]

I do suffer from occasional bouts of vertigo, but nothing really worth writing home about. I went through a windshield about two years ago and suffered a nice concussion that resulted in a huge goose egg on my forehead, a black and blue face and two depressed discs but other than that nothing too serious. I was just wondering if that could be a factor in failing the pen test, since after that incident I have trouble with my left peripheral.

In any case, the BAC is rather interesting. I thought it would have been much higher for 24 oz of beer. I don’t think the police officer that stopped me would have agreed however since he seemed pretty convinced (or perhaps bluffing) that I was over the limit of .08 until I did the lift leg and count test, or perhaps he was just giving me a break or something. Either way I am just glad I didn’t get popped with a DUI, that would have been far worse then what I got.

Well I did learn a lesson for what its worth, throw away the empties, and when in doubt wait it out. Oh and go slow when exiting a freeway?

By the way I miss Portland!!! I am from there and not that long ago transplanted here. I used to live in Gresham.

Thanks a bunch and keep up the good work out there!

[Lfpdlieu302]

the test is not called the "pen test", its called the horizontal gaze nystagmus test. nystagmus is an involuntary jerking of the eyes, it can be caused by previous head trauma, however more oft than not, its caused by alcohol. you cant feel nystagmus, you do it without knowing that you are actually doing it. dont try and figure out what your bac could have been, its not exact and you have to take into consideration the alcohol content in the drinks you are having. field sobriety tests are a great way of testing for intoxication. and by the way, i dont know what state youre in, but in arkansas the legal limit is .08, but i can arrest and charge you even if you blow lower than that. remember some people dont need to be as drunk as others to be impaired.