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Dunn v. State8/19/2004
to the accident around 11:30 p.m. Upon learning that Sommers had apprehended the fleeing truck, they proceeded to assist her. Estrada talked to Appellant and told him they were investigating a hit-and-run accident. Appellant insisted he was not involved in an accident. Estrada examined the truck and found damage to the rear driver’s side. He saw streaking and scrape marks. The officers then drove Appellant to the scene of the accident. In transit, they smelled alcohol on him. They described him as jumpy, nervous, excited, talking, and saying that he was not involved in an accident on the way. His speech was mumbled, garbled, and thick-tongued.
Upon arriving at the scene, Estrada talked to the driver of the other truck and conducted an investigation. Estrada determined that Appellant had tried to pass the other vehicle driven by Jimbo Valentic on the emergency shoulder. Appellant couldn’t make it and got on his CB radio to tell Valentic to let him pass. Appellant then cut back behind Valentic, went into the second or middle lane, tried to cut Valentic off, and clipped him. Estrada saw damage to the front right side of Valentic’s truck where the lug nuts had been sheared off. Estrada believed that the damage to the two trucks was consistent with his findings. Estrada and Ferrel called a STEP unit which arrived within thirty minutes. Ferrel informed the unit what had happened, and the unit took over.
Officer Luis Acosta, a member of the STEP unit, asked Appellant about the accident. Appellant continued to insist that he had not been in an accident. Acosta detected alcohol on Appellant’s breath; his eyes were red and watery, he was aggravated, and his speech was slurred and mumbled. Since Acosta suspected that Appellant was drunk, he asked him to perform field sobriety tests. Appellant did not tell the officer of any medical ailments, and none was apparent. Acosta testified that the tests were conducted at night but that there was lighting both from the poles and the police cars. Acosta conducted three tests including the HGN test, the walk and turn test, and the one-leg stand test. During the HGN test, Acosta observed all six clues. During the walk and turn test, he observed five out of eight clues. On the one-leg stand, Acosta observed three out of four clues. Acosta determined that Appellant was intoxicated at the scene. Appellant was arrested for DWI and placed in the patrol car.
Acosta drove Appellant to the central station downtown and read him the DIC-55, the commercial vehicle form that is a statutory warning of the consequences of an arrest for DWI when driving a commercial vehicle. Acosta asked whether he wanted to submit a breath sample. If a commercial driver blows a .04, then his license is suspended. Appellant did not immediately say yes and he argued and stalled the officer. When asked again, Appellant finally agreed. Acosta gave him three opportunities to provide a sample. Appellant would begin giving a sample for three to four seconds, but then would stop blowing. He pretended to blow with his cheeks puffed out, but Acosta was able to determine that no air was going into the machine since it was not beeping and the light was not blinking. All three samples were deficient. A deficient sample is characterized as a refusal, so Appellant was videotaped. Acosta performed two of the sobriety tests again for the video. On the video, Appellant stated that he had an inner ear problem.
At trial, Socorro Castaneda, a toxicologist for the El Paso Police Department, testified that she was responsible for testing the intoxilyer machines. Castaneda had checked the machine during an on-site inspection on April 12 and again on April 27. The machine was working properly both t
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