To Austin attorney Daniel Betts, driving while intoxicated can sometimes be what he calls “an opinion crime.” Law enforcement must decide, sometimes within only a matter of minutes, whether a person is intoxicated and should go to jail — or be allowed to simply drive way.
On the night Austin police arrested his client, they made the wrong choice, he says – his opinion bolstered by a voluntary breath and blood test showing Larry Davis wasn’t intoxicated when he was arrested Jan. 13, 2013. He tested 0.00 on a Breathalyzer – the lowest possible reading — and the blood test, which took months to be tested, came back negative.
“My reaction was just shock that it happened,” Betts said of the arrest, after watching a police dash cam video and reviewing the evidence.
The arrest meant Davis spent a day in jail, and he was left with a criminal case looming over him for more than a year. Because he was declared indigent at the time, the county picked up his legal fees of a few hundred dollars.
At the time, prosecutors cited cases against suspects whose breath test was below the legal limit of 0.08. Police have said, however, that they must abide by a take-no-chances policy in the interest of public safety. Their position: If you look drunk, you will be arrested and the court system will work it out in the future.
That practice typically leads to about 30 percent of DWI cases getting dismissed.
I learned about Davis’ case this month, and it stood out for its numerous red flags.
Police arrested him near U.S. 290 and Interstate 35 after he ran a stop sign, and officers wrote in an arrest affidavit that Davis, who told them he’d had only one drink, appeared intoxicated based on his performance in a field sobriety test.
When they got him to the jail, Davis blew a 0.00 on the breath test.
“I told them I would take a blood sample as well, just to prove that I didn’t have anything in my system,” Davis told me in a recent interview.
That test came back negative, too.