NO.04-52872

THESTATE OF TEXAS, )      IN THE COUNTYCOURT NO. 4

                                           )

              Plaintiff,                )

                                           )      DALLAS COUNTY,TEXAS

v.                                         )

                                           )

YYYD. ZZZ, )

                                           )

                      Defendant . )

)

DEFENDANT’SMOTION IN LIMINE

Defendant, YYY D. ZZZ, hereby moves this Court, inlimine, to exclude any evidence related to the subjects set forthbelow and, in support of this motion, she sets forth the following facts andargument:

1.  Any evidence of  Field Sobriety “Tests” Whose Validityis Not Established in Relation to Persons suffering Ear Damage

Prior to trial, YYY ZZZ filed medical records,pursuant to Tex. R. Evid. 902(10)(a) indicating that she suffers from vertigoas well as intermittent problems with disequilibrium and sensation ofimbalance. Likewise, she suffersfrom non-alcohol related nystagmus. It is presumed that the state will offer evidence that Ms. ZZZ’ showed“clues” of intoxication while preforming the one leg stand “test” and the walkand turn “test.” Likewise, it ispresumed that it will offer evidence that Ms. ZZZ’ showed several clues ofsuffering from nystagmus while being given a Horizontal Gaze Nystagmus (“HGN”)test.

         Withregard to the HGN test, the Court of Criminal Appeals has held that evidenceconcerning the administration of that test is admissible in DWI trials providedthat it is
performed in accordance with the DWI Detection Manual. Emerson v. State, 880 S.W. 2d 759, 769 (Tx. Crim. App. 1994).  A similar result with regard to the oneleg stand “test” and the walk and turn “test” is compelled by the rationale of Kumho Tire v. Carmichael, 526 U.S. 137 (1999) and Kelly v. State, 824 S.W.2d 568 (Tx. Crim. App. 1992).

         Nevertheless,it is undisputed that the DWI Detection Manual notes that some persons sufferfrom non-alcohol related nystagmus. Likewise, the DWI Detection Manual notes that vertical nystagmus can becaused by certain pathological disorders, such as diseases of the inner ear,and that sober individuals with middle ear problems will have difficultypreforming the one leg stand “test” and the walk and turn “test.”

         Inshort, the HGN test, the one leg stand “test” and the walk and turn “test” arescientifically invalid whenadministered to persons with Ms. ZZZ’ medical condition and, therefore,evidence of any “clues” Ms. ZZZ allegedly demonstrated on such tests should beexcluded under Tex. R. Evid. 702 and 403.

2.  References to “test(s),” “clue(s),”“pass,” and/or “fail”

Assuming that the Court allows the state to adducetestimony regarding the administration of the one leg stand “test” and the walkand turn “test,” Ms. ZZZ submitsthat under Tex. R. Evid. 702 and 403 that the state’s witnesses should beprecluded from using scientific terminology while describing her performance onthe “tests.” See, e.g. UnitedStates v. Horn, 185 F. Supp. 2d 530, 559 (D. Md. 2002) (“If offeredas circumstantial evidence of alcohol intoxication or impairment, the probativevalue of the SFSTs derives from their basic nature as observations of humanbehavior, which is not scientific, technical or specialized knowledge. Tointerject into this essentially descriptive process technical terminologyregarding the number of standardized clues" that should be looked for oropinions of the officer that the subject ‘failed’ the ‘test,’ especially whensuch testimony cannot be shown to have resulted from reliable methodology,unfairly cloaks it with unearned credibility. Any probative value these termsmay have is substantially outweighed by the danger of unfair prejudiceresulting from words that imply reliability. I therefore hold that whentestifying about the SFSTs a police officer must be limited to describing theprocedure administered and the observations of how the defendant performed it,without resort to terms such as ‘test,’ ‘standardized clues,’ ‘pass’ or"’fail,’ unless the government first has established a foundation thatsatisfies Rule 702 and the Daubert/KumhoTire factors regarding the reliability and validity of the scientific ortechnical underpinnings of the NHTSA assertions that there are a stated numberof clues that support an opinion that the suspect has ‘failed’ the test.”)

3.Hearsay Related to Field Sobriety Tests

While a State’s witness can testify as to what wasobserved while conducting field sobriety “tests” and can testify that suchtests helped inform the witness’ decision to arrest a defendant, even assumingthat the Court allows the state to adduce testimony regarding theadministration of the HGN test, the one leg stand “test” and/o the walk andturn “test” in this case, a witness should not be allowed to testify that suchtests establish intoxication. Likewise, a witness should not be allowed to testify as to hearsayrelated to such tests, for example, that such tests correctly identifyintoxicated individuals a specific percentage of times. See Tex. R. Evid. 705(d).

4.  Portable Breath Test

It is well established that the state may notintroduce any evidence of a portable breath test (a “PBT”) to establish a“quantitative alcohol concentration.” See. ,e.g., Fernandez v. State, 915 S.W.2d 572, 576 (Tx.Ct. App.--San Antonio 1996). Nevertheless, in this case, Ms. ZZZ hesitated when she was asked tovoluntarily preform a PBT. Sheonly consented to perform such a test when told that it “cannot be used incourt.” See Video at 2:36:50. Had Ms. ZZZ been told that the PBT was admissible, forany purpose, to help marshall evidence against her and as an indicator ofintoxication, she would not have submitted to the test.  Indeed, in Henry v. Kernan, 197 F.3d 1021, 1027 (9th Cir. 1999) a defendantconfessed after being told that “‘what you say can’t be used against you rightnow.’” The United States Court ofAppeals for the Ninth Circuit suppressed the defendant’s statements thatfollowed that invitation. Id. at 1027-28 (“Such misleading comments were intendedto convey the impression that anything said by the defendant would  not be used against him for anypurposes.”) Here too, the officersconvinced Ms. ZZZ to preform the PBT after conveying the impression that itcould not be used against her for any purpose.

5.Vertical Nystagmus Test

            Anyevidence that Ms. ZZZ displayed vertical nystagmus at the time of his arrestwithout laying the proper foundation under Kelly, 824 S.W.2d 568. SeeStovall v. State, 140 S.W.3d 712 (Tex. Ct.App.--Tyler 2004); Quiney v. State,99 S.W.2d 853 (Tex. Ct. App.--Houston [14th] 2003).

6.Any References that Could be Construed as Evidencing a Prior Arrest or Conviction

            At2:53:04 of the tape, Ms. ZZZ displays her familiarity with the book inprocedure at the Dallas County Jail by stating she knows that a birth date isrequired to locate an arrested person. Similarly at 2:56:30 she makes reference to a previous DWIconviction. This evidence shouldbe excluded under Tex. R. App. P. 403

            WHEREFORE,YYY ZZZ respectfully requests this Court to grant her Motion In Limine in all parts and instruct the State not to introduceevidence, including portions of any video, regarding the subjectsset forth above and to instruct its witnesses not to mention such subjectsduring their testimony.

                                                      Respectfullysubmitted,

                                                      F.Clinton Broden

                                                      Tx.Bar 2400149

                                                      Broden& Mickelsen

                                                      2707Hibernia

                                                      Dallas,Texas 75204

                                                      214-720-9552

                                                      214-720-9594(facsimile)

                                                      Attorneyfor Defendant

                                                      YYYD. ZZZ
CERTIFICATE OF SERVICE

            I,F. Clinton Broden, do hereby certify that, on this 15th day of March, 2005, Icaused a copy of the foregoing document to be served on the Dallas CountyDistrict Attorney’s Office 133 N. Industrial Blvd., Dallas, Texas by handdelivery.

F.Clinton Broden