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Lonely Wise County Courtroom After The Fact
I mentioned to you earlier this case was unusual and it was. Basic facts: Sheriff's Office receives a call at 2:50 a.m. that a pickup is sitting half on and half off a remote country road in Wise County, all lights off, and the radio blaring. The caller, who is going to work, said it just seemed "suspicious". He couldn't say whether it was running or not.
A deputy responds in 10 minutes. The driver is found sitting behind the steering wheel with his hands to his side. The deputy testifies the vehicle was running with the transmission in "park". He then turned the engine off by reaching in the open driver's side window -- the music (which was Eminem's Slim Shady) continued to blare until the deputy opened the vehicle door. The driver remained asleep and only woke up when the deputy spoke a few seconds later to dispatch over the radio. The driver is initially disoriented and admitted to drinking "two to three beers".
The deputy arrests him for Public Intoxication because there are no troopers available to perform field sobriety testing for a DWI investigation. The Deputy tells him, "It's your lucky day." However, about three minutes later a trooper reports he is available and arrives at the scene in about twenty minutes. Routine field sobriety testing occurs as well as the arrest of the driver for DWI. The driver refuses to provide a sample of his breath.
A search of the vehicle reveals a receipt for a six pack of beer purchased in Runaway Bay at 11:34 p.m. That's about five miles away and three and half hours ago. One beer is in the truck and half empty. One beer cannot be found. Four full/unopened ones are in the sack.
There's always a ton of issues in a trial but the main one was this: Assuming the State proved intoxication, was the driver "operating" a motor vehicle when the deputy found him? The driver/defendant did not testify. The jury will have no information about what happened before the deputy arrived on the scene, why the driver decided to stop at that location, or how long he had been there. Nor will they have any information regarding whether the driver was intoxicated when he initially parked the vehicle. The term "operating" is not defined by the Texas Penal Code. So was he operating a motor vehicle when the deputy walked up to him and found him asleep?
That question, to me at least, is as much of a philosophical question as a factual one or legal one.
Edit: Can't post comments about "what Barry knows" or any factual allegation that I can't verify.
