[music] >> In today's episode, we will explore the cross-examination of a police officer who arrested an individual named Mr. Martinez on suspicion of drunk driving in Harris County, Texas. Mr. Martinez was charged with driving while intoxicated, or DWI, and his case proceeded to a jury trial in Judge David Fleischer's courtroom at the Harris County Criminal Court in Houston, Texas. The officer testified for the state, and after the district attorney completed direct examination, Mr. Martinez's attorney began cross-examining him. >> Mr. Fleischer, you ready? >> I'm sorry. I did the state pass? >> The state passed witness. >> All right. Yes, I'm ready to go. >> So, where did we begin? You You saw the video that we all watched you approaching um Mr. Martinez, right? >> Yes, sir. >> And despite your insistence on Well, you told the jury that you asked him how much he had to drink or if he had been drinking, right? And he He admitted he had. >> Yes, sir. >> It's not illegal to drink alcohol and then drive if you're not intoxicated, right? >> Correct. >> Um are you a drinker? >> No, sir. >> You don't drink any alcohol? >> No, sir. >> Okay. Um do you think everybody that drinks alcohol and then drives is guilty of DWI? >> No, sir. >> So, you said you were out that night as um a speed to look for speeders? >> It was a traffic enforcement, yes, sir. >> I think but I think you said you were out there looking for speeders >> Yes, sir. Yes, sir. >> and also uh drunk drivers. >> Yes, sir. >> So, you were like a speeding and drunk driving enforcer that night. >> Correct. >> Um are you familiar with the saying that uh when you're a hammer, everything looks like a nail? >> True. >> So, that was kind of your role that night. You were out there looking for I mean, it was the night shift. >> Yes, sir. >> You're looking for people to arrest or pull over for DWI, right? >> Correct. >> And you happen to find someone who um looked like an owl. He was feeding and you smelled an odor of alcohol, right? >> Yes, sir. >> Now, you wrote an offense report in this case, correct? >> Yes, sir. >> And you wrote that close in time to when this happened, right? >> Correct. >> You bring a copy of that with you? >> Yes, sir. >> I [clears throat] I saw you kind of looking down earlier. It's okay to refresh your memory. >> Mhm. >> Uh cuz I know it was a little time ago, but um can I just ask you, you know, you don't read directly from it or read word for word, you know, if you say, "Hey, do you mind if I refresh my memory?" That's fine, okay? >> Okay. >> You stated um that you smelled an odor of alcohol on his breath. >> Yes, sir. >> And you And that was when the state was asking you questions right here. >> Mhm. >> You didn't say I smelled a strong odor of alcohol. >> All right. >> You didn't say I smelled um heavy odor of alcohol. You just said I smelled an odor of alcohol. >> Okay. >> Right? >> Yes, sir. >> Um you could have said, when they said, "What did you smell?" You could have said, "I smelled a strong or heavy odor of alcohol on his breath, right?" >> That's correct. >> But you did not say that. >> That's correct. >> Um but you agree with me anyway though that just having the odor of alcohol on your breath, it doesn't it doesn't prove a person's intoxicated. >> That's correct. >> Everybody knows that, right? >> Yes, sir. >> Um it doesn't even tell you how much alcohol a person has consumed, right? >> That's correct. >> Even if you said a strong odor of alcohol, that doesn't mean that well, that person's really consumed a ton of alcohol, right? >> That's correct. >> Okay. So, he admitted to drinking, you smelled the odor of alcohol. That That makes sense, right? >> Yes, sir. >> Okay. Him drinking and him admitting to it and you smelling it, that doesn't mean he was intoxicated though, right? >> That's correct. >> Okay. I don't I don't know who he was. I mean, I'm 53, my hearing's not what it used to be, but he didn't say I had several. We didn't hear that. Are you telling the jury that that's what you heard? How old are you? >> I'm 50. >> Do you have Do you wear hearing aids? >> No, sir. >> Do you have trouble hearing as you any of your family? >> closed room, yes. >> Okay. Do you ever family members ever said something like that like they have to me that you have to repeat it themselves? >> That's how it was. >> After listening to it I think once or twice are you still trying to I mean you know you're under oath here, right? >> Yes, sir. >> And you're still telling these folks here that that we all heard that he said I had several drinks or do you want to change that answer now? Just tell us the truth. He never said several drinks. They got this man charged with a criminal offense. Do you understand that? If you If you were charged or a family member, would you want an officer up there not telling the truth to a jury? >> Well, I didn't >> Objection, your honor. >> No, sir. >> Is that your answer? >> Yes, sir. >> So, why is it okay for you to do that? You said that wasn't the truth. >> Well, I never said that's true. >> Did he say several drinks? >> He said a few, yes. >> Did he say I had several drinks like you testified to under oath two times? >> Yes. >> As in as in that. >> Overruled. >> Which is it cuz you just said you know he didn't say that. >> No, he said a few. >> Is that fair to exaggerate facts or to tell the jury things that are not true? >> No, because a few means a lot. >> [clears throat] >> He never said several. He never said a few. You want to play it again? I'll play it as many times as you want. Can you If I played it again, can you point out to the jury where he said I had a few drinks? Officer look, I'm not trying to trick you. >> No. >> This is important. We want to be fair, right? >> Yes, sir. >> We want to be fair. Your job's too important to not tell the truth under oath, isn't it? >> That's right. >> I mean is it Is it that important that you've got to exaggerate and make up things that aren't true just to try to convict this guy? >> No, I'm not trying to convict nobody. >> Well, then why aren't you telling them truth to the jury? We all heard it. >> The video showed the truth. >> Right. The video shows the truth. >> Yes, sir. >> You asked him if he had been drinking. >> Yes, sir. >> [clears throat] >> He said, "A little bit." >> Um difficult language. >> Really? It It's not important to you? Did you watch the video before testifying? >> Yes, it is. >> I just wanted to be clear what about what happened and we have the video and then we have where you're saying the video said. Those don't match up, do they? Yes or no? Does what you told the jury match up with what is on the video? >> Yes. >> How is that okay? That's not okay. You went up to him and you asked him, "Have you been drinking?" And he said, "A little bit." Right? I I will play the video again. It's in evidence. Do I need to or will you just agree with me that I that that's the truth? Cuz if you're not going to agree with me that that's the truth, you want me to play it again? >> Sure. >> You You have mine? >> Help me find the spot. Your Honor, for the record, that's State's Exhibit 2 at the 2-minute 34-second mark. >> You said, [clears throat] "How much did you have to drink?" "Have you had anything to drink?" What did he say? >> A little bit. >> A little bit. He didn't say, "A few." Correct? >> Correct. >> He did not say, "Several." Correct? >> [snorts] >> So, that's not a part of this case. >> Correct. >> Okay. >> Thank you. >> The defense attorney confronts the officer about his direct examination testimony that Mr. Martinez said he had, quote unquote, "several" drinks. When pressed, the officer tries to soften that to, quote unquote, "a few." But, after the defense replays the arrest video, the officer concedes that Mr. Martinez actually said he had been drinking, quote unquote, "a little bit." Under Section 49.04 of the Texas Penal Code, the state cannot secure a driving while intoxicated conviction by proving only that a person drove after consuming alcohol. Rather, the statute prohibits operating a motor vehicle in a public place while {quote} intoxicated, which section 49.01 of the Penal Code defines as either not having the normal use of mental or physical faculties due to alcohol consumption or having a blood alcohol concentration of 0.08 or more. As such, whether Mr. Martinez admitted to having several drinks or only drinking {quote} a little bit is directly relevant to whether the state could prove that he was {quote} intoxicated as opposed to someone who had just consumed some alcohol. By replaying the video and forcing the officer to concede the actual wording, the defense both highlighted favorable evidence for the jury and impeached the officer's credibility by showing that his direct examination testimony after the claimed admission was inaccurate. >> You came back to the vehicle. You asked him again, "How much have you had to drink tonight?" And he said, "One." And you said, "Are you sure?" He said, "Yeah." He didn't say a few, right? He never says so, correct? Is there anywhere else on the video that he said a few or several? >> No, there's a part of the video where he says, "Honestly, yeah." >> You sorry? >> There's a part of the video where he says, "Honestly." >> He said what? >> "Honestly, yes." >> Yeah, I got you. Well, that's why I wanted to show you what the state showed. And the answers that you gave don't match up with what Mr. Martinez said, right? >> Correct. >> Okay. We heard you ask him two times about drinking. Did he ever say he had a few or several? >> No, sir. >> But why would you come to court under oath and tell the jury that? Why? That's the May I approach the witness, Your Honor? >> Yes. >> Um I've got copies of your offense report. >> Yes, sir. >> I'd like to show it to you. I don't I don't know what what you have that you wrote in your offense report, right? That did you ask the driver if he had any alcoholic beverages, right? So, we heard that. That's the whole verse of that in my head, right? Did we see the drink? That's the truth. >> Right. >> Not what you're saying. Right? Right? >> Yes, sir. Right. >> And he stated, "What did you write? He had only one." And you put O N E, and then you put parentheses and the number one in there to make sure that there was no confusion in your offense report that he said he had one drink. >> Yes, sir. >> You never wrote anywhere that he had a few or several or that he came back later and said, "Well, honestly, I had a more to drink." Is that anywhere in there? >> No, sir. >> Is this the kind of police work that you are used to getting away with doing? >> No, sir. >> Oh, so you don't get away with this all the time? >> No, no, no. >> Or you do get away with it all the time? >> No, no, no. >> Yesterday, did you get away with writing it all the >> No, sir. It's not all the time. >> It's >> It's not all the time. >> On the back, you write again that you asked the driver if he had any alcoholic beverages. This is like two places, and he stated that he had only one. >> Yes, sir. >> And you wrote the number one, O N E. >> Yes, sir. >> And then you put parentheses, the number one. Anything about that I misrepresented? >> No, sir. >> The defense attorney questions the officer about the fact that he wrote in his police report that Mr. Martinez had only one drink. This line of questioning is again aimed at calling the officer's testimony about Mr. Martinez's admission into question by demonstrating that the officer's own paperwork was in direct conflict with what he told the jury during direct examination. Under Rule 607 of the Texas Rules of Evidence, any party may, quote unquote, impeach a witness, meaning they may attack their credibility. Impeachment can take several forms. For instance, a witness may be challenged with evidence of certain criminal convictions, testimony about the witness's reputation for untruthfulness, or an opinion that the witness has a character for untruthfulness. Another common method, which rule 613 of the rules of evidence addresses, is confronting the witness with a prior inconsistent statement, meaning a written or verbal statement the witness previously made that does not match what the witness is saying on the stand. In this instance, the officer testified that Mr. Martinez admitted to {quote} "several drinks" when his written report recorded only one drink. By confronting him with this discrepancy, the defense attorney demonstrated a concrete credibility problem to the jury and gave them a practical reason to question whether the officer's other direct examination testimony was equally unreliable. >> You approached the vehicle and he was holding his license and insurance out the window. >> Yes, sir. >> You were going to ask him for that, right? >> Yes, sir. >> How in the world is that a sign of intoxication? You said he was bouncing it? >> Yes, sir. >> That's a sign of intoxication? >> Well, usually drivers >> Is that a sign of intoxication? Yes or no? >> No. >> Then why are you here trying to tell the jury that it is? >> I never said that. >> Do you remember 10 minutes ago when they were asking you questions and you said he was bouncing his license and you were trying to insinuate that that was weird or some >> I didn't say that. Observation. >> Right, about like his mental or physical faculties? >> Yes, sir. >> So, [clears throat] okay. You you talked about um NHTSA, right? >> Yes, sir. >> And I know this isn't the manual you received, but National Highway Traffic Safety Administration, that's NHTSA, right? That's an acronym that stands [clears throat] for the federal agency that is the authoritative body on um how to administer field tests, right? >> Correct. >> And they give you an arsenal of three tools, three tests. There's an eye test, the horizontal gaze nystagmus, right? >> Yes. >> You know the name of the other two? >> Yes. >> Walk and turn. >> One leg stand. >> Okay. Three tests that you can use to administer, and as you said, to determine if a person is intoxicated or not, right? >> Yes. >> And that's what you were intending to do. You smelled alcohol. You asked him if he would do those sobriety tests. >> Yes, sir. >> And he said no. People have the right to refuse those tests, right? >> Correct. >> And he he invoked that right. >> Yes, sir. >> He thought about it. He made a conscious decision and said no, right? >> Yes, sir. >> Which he has the right to do. >> Yes, sir. >> Now, what you decide to do if somebody refuses, that that's up to you, right? >> The next question was why Sorry. >> It's up to you. >> I asked the other dispatcher >> Objection, that's non-responsive. Your Honor, ask a yes or no question. >> Both of you guys are It's just Don't get hostile. Ask the question. Let him answer. That's it. >> Objection, non-responsive. >> What's your question? >> I said if he refuses or submits, what you If he refuses, what you decide to do next is up to you. >> Yes, sir. >> Okay. >> So, you you intended to perform those tests, as you stated, to determine if he was intoxicated or not, right? >> Correct. >> But you were not able to perform those tests to determine if he was intoxicated or not, correct? You stated that um So, what in your in your training, you went through um you received a manual about the standardized field sobriety tests, right? >> Yes, sir. >> And that talks about the history of alcohol in the country, administration of the field sobriety tests, but also a whole list a litany of of signs [snorts] about how a person's driving that could also indicate intoxication, right? >> Yes, sir. >> I mean, there's a hundred different clues they list that say if a person is driving like this, that could mean they're intoxicated. >> All right. >> Did you know this speeding has never been one of those signs? >> Does this speed >> speeding Did you know this speeding has never been listed as one of those signs? >> It says speeding and braking. >> Is everybody that's speeding um intoxicated? >> No, sir. >> Only at night. >> No, sir. >> When you're out there looking for drunk drivers. >> Uh I'm not looking for anyone. >> [clears throat] >> Well, that's not what you said earlier, is it? You said you were out there looking for speeders and drunk drivers. >> No, I was doing traffic enforcement. >> Um Mr. Martinez, there's no evidence that he was swerving, correct? >> No, sir. >> You didn't testify to that, right? >> No, sir. >> You testified to everything you observed about his driving to the jury. >> Yes, sir. >> Which would indicate that you thought he might be intoxicated, right? You didn't keep anything back, right? Was he He wasn't running red lights, stop signs, swerving all over the road, right? >> No, but he did illegal violations, yes, sir. >> Right, we all know he was he was speeding. >> Correct. >> That doesn't prove a person is intoxicated, right? >> No, sir. >> I don't know if you saw your uh your [snorts] radar in there, but all those people that were Well, when it when you pulled him over, there was nobody around him. There were a few other cars that passed You radar kept going like 77, well over the speed limit. >> Yes, sir. >> All those people intoxicated just cuz they're speeding? >> No, sir. >> Okay. What we know that that was a traffic violation. >> Yes, sir. >> Was there anybody [clears throat] that called in like to 911 there's a drunk driver out there? >> No, sir. >> With respect to Mr. Martinez. >> No, sir. >> So, other than just driving fast, there was nothing else about him driving that indicated to you intoxication. >> No, sir. >> Okay. When you pull pulled over, he he Some people who are intoxicated, they keep driving for a long time before they pull over, right? >> Yes, sir. >> It shows slow reaction time, right? >> Yes, sir. >> There's nothing about how he acted that showed a slow reaction time. He put his blinker on, he pulled over, right? >> Yes, sir. >> [clears throat] >> Nothing about the way he pulled over indicated intoxication, correct? >> No, sir. He didn't straddle the yellow line. >> Yeah, we we heard you say that. >> Mhm. >> Your opinion because he pulled over to the left instead of the right. >> Yes, sir. >> That's not how you wanted him to pull over, right? >> That's correct. >> Did you get on your bullhorn and say "Driver, pull over to the right shoulder."? >> No, sir. >> You could have, right? >> Yes, but the two lanes said yes, sir. >> You could have told him where you wanted him to pull over. >> Yes. >> Okay. you followed him, you put your blinker on, pulled over to the left, and that's where you stopped him. And then Officer Poncey, your Was he your corporal at the time? Yes, sir. He actually showed up after you, and he helped block the scene. >> Okay. >> Block that lane so you it was safe. >> Yes, sir. >> He was out on the scene as well. >> That's a fact, yes, sir. >> [clears throat] >> And he observed Mr. Martinez as well, correct? >> Correct. >> Now, I don't know how closely you watched the video, but you know that there's there's more things that you said that are not true when the state asked you questions. Do you know what those are? You have your offense report, and Officer Poncey wrote a supplement, correct? >> That's correct. >> Okay. And Officer Poncey, he wrote what he observed of of Mr. Martinez, right? >> Correct. >> You stated to the jury that you observed Mr. Martinez chewing gum. >> That's correct. Look through your offense report and point out the place anywhere in there where it says that you observed Mr. Martinez chewing gum. >> Well, I didn't have it in my report, no, sir. >> That's because you didn't notice that. Officer Ponce did. Officer Ponce comes out and he he then So, you told the jury They said, "What else did you observe?" I observed Mr. Martinez chewing gum. And that was a sign he was masking hiding that he was intoxicated. Really? Officer You didn't even know he had gum in his mouth. Officer Ponce comes out I mean, eventually you did cuz Officer Ponce told you, right? >> No, I didn't know he was uh chewing gum. >> Where is it in your offense report? Show me. Just show me. Where is it on the video that you observed gum in his mouth? Officer Ponce comes out. He's He asks you Did you watch this part? He asks you, "Does he have gum in his mouth?" And you said, "I don't I don't think so." >> at that point. He's asking about another person who's not going to hear. >> It's all Officer This goes to Officer his credibility, Judge. What he testified to earlier. >> He's asking about somebody else's statement out of court. >> I mean, I can ask what happened. That's a very simple question. You weren't um You didn't notice gum in his mouth. The other officer asked [clears throat] you and notified you he had gum in his mouth, right? >> He identified it. Yes. >> Right. And at first, you weren't aware. And then Officer Ponce goes up to the car and tells Mr. Martinez, "Open your mouth." Right? >> Mhm. >> You saw that, right? >> Mhm. >> And Officer Ponce looks at Mr. Martinez's mouth and he says, "Spit your gum out. You're not allowed to have gum in a patrol car." Right? >> Correct. >> You didn't have any part of that. Officer Ponce hadn't even observed it or asked him to open his mouth. You would have never known. But, you're here today representing things to the jury that that they're they're totally not true. I mean the gum's an insignificant part, right? I mean you're not trying to convict a person because he had gum in his mouth for DWI, right? >> I'm not trying to convict anyone. >> You're not? >> No. >> So, you're here like testifying in a in a neutral capacity or are you biased against Mr. Martinez? >> I'm biased, no one. >> Unbiased? >> Unbiased, no one. >> So, you're here in a neutral capacity? >> I'm here to just observe the scene. >> Okay, so if the if the jury um it's it's who decides whether or not um is guilty or not guilty, you or the jury? >> I believe the jury. >> Right, you when you arrest a person that doesn't mean that they're guilty of an offense, right? >> That's correct. >> You just had probable cause, I mean you well >> [clears throat] >> I mean it sounds like there may be a question about whether you even had probable cause, right? >> Yes, I believe we're getting into a definitely legal question at that point. He was already He was earlier making legal conclusions, was he not? Overruled. >> I guess my point is is that >> [clears throat] >> probable cause, you know, you smell alcohol, you pull someone off the road, it's probably a safe thing to do, right? >> Yes, sir. >> If the jury says they don't think that it was proved in this case, they can say not guilty, right? >> That's correct. >> And nothing would happen to you professionally in your job if they said not guilty, right? >> That's correct. >> And since you're neutral and not biased against Mr. Martinez, whatever the jury decides, you would be completely fine with, correct? You You say you're not here trying to convict him. If they said not guilty, you should be completely fine with that. >> That's correct. >> That's correct. So, it's fine for whatever the jury decides, you'll be totally fine with. >> That That's speculative. Now, I'm I'm curious as to whether his slurred speech I I don't have bloodshot eyes. I'd like to know about the indicia indicia of intoxication. >> That's where I was about where I was going next, Judge. >> So >> the I'll get there shortly. >> Yeah. Get on it, doggone it. >> The defense attorney continues to question the officer, and Judge Fleischer indicates that he would like to hear about the so-called indicia of intoxication. The term indicia of intoxication refers to the observable cues in the driving and in the driver's behavior after the stop that officers are trained to treat as objective markers of impairment. According to the National Highway Traffic Safety Administration publication, the visual detection of DWI motorists, indicators of intoxication can appear both before the stop while the officer observes driving behavior and after the stop while the officer observes the driver. Pre-stop indicia can include driving behaviors such as drifting, swerving, straddling lane lines, near collisions, unexpected acceleration or deceleration, driving in opposing lanes, and driving without headlights at night. After the stop, officers are trained to look for cues such as difficulty with vehicle controls, difficulty exiting the vehicle, fumbling for documents, repeating questions or comments, swaying or balance problems, leaning, slurred speech, slow responses, or requiring repetition of questions, inconsistent or incorrect answers, and the odor of an alcoholic beverage. For reasons that will become apparent as the cross-examination continues, it is important to note that, quote unquote, "glossy eyes and speeding" are not included in that list of indicators. Here, by directing counsel to focus on indicia of intoxication, Judge Fleischer was steering the examination toward the core question the jury must decide, whether the state had enough evidence to conclude that Mr. Martinez was intoxicated. So so let's talk about that. You stay They asked you which is typical, did you make Did you form an opinion about whether or not um Mr. Martinez was intoxicated? >> Yes, sir. >> And [clears throat] you said Well, first of all, you said that he had slurred speech. >> Yes, sir. >> I mean, there's like less than 1 minute, maybe or a minute of you talking to him. We We don't hear any slurred speech on the video. I'm sorry. >> I heard him. >> On the video? >> Yes. >> Seriously? >> video, yes, when I was there. >> You You said he had quick answers. I mean, what's the opposite of that? Having slow answers? >> I said quick answers, sir. He didn't say "Why?" He just answered. >> Well, if he was responding slowly, you'd say he was intoxicated because he had a slow reaction time in responding to your questions. >> I never said he was intoxicated. I said he had signs of intoxication. >> You never said that you thought he was intoxicated. That's the point. Because when the state asked you, "What did you think about him?" you said You said, "I thought he didn't have his mental faculties." Right? >> Yes, sir. >> And they said, "Why did you think that?" And you said, "Because he said I'm coming from 59." >> Yes, sir. >> Perfectly clear. We could all hear it. No slurred speech. No speeding out with quick answer. Perfectly legible. "I'm coming from 59." And that means that he didn't have his mental faculties? >> No, the answer that he gave him. >> From 59? >> Yes. >> That's what you're saying is evidence that he didn't have his mental faculties? >> Yes, sir. >> I think you said because he didn't say I was coming from a restaurant or or a bar. You wanted him to say he was coming Whatever. Um And And that's something you based your decision to take him into custody on? >> No, sir. >> Well, when the state asked you, "What did you base your decision on?" That was one thing you said. Right? >> Mhm. >> Okay. Um physical faculties. You You stated that his balance was bad. >> He stumbled when he stepped out of the car, yes. >> Where? It's like we're watching two different videos. Where did Where was his balance bad? Where did he stumble? Did we ever see that? >> Yes, he did. >> We did? >> When he was coming out of the vehicle, he kind of like stumbled. >> He didn't. The guy gets out of the vehicle, he turns around like this and puts his hand on the car. Where in the world could he stumble in a foot and a half space? He did not stumble. >> That's what I'm saying. >> [clears throat] >> I'm sorry? >> That's what I observed. >> You saw him stumble from the time he got out of the car and put his You had a dash camera, too, that was in your car. So, if he stumbled, there's a whole other camera that would show that, right? >> Yes, sir. >> Why didn't we see that? Why don't we see something that shows what you say is true? >> That's not what we were saying. >> Whose job is it? >> I was >> I I think you're putting them in a bad spot, don't you think? They're trying to prove what you say is true, but they can't. Don't you see that? They can't prove that you that he said he had several drinks or a few drinks. They can't prove that. You're making their job very hard. You get that? >> Mhm. >> Is there something else you want to give them to help them prove that you're telling the jury the truth? >> But I didn't tell them anything. >> It's all there. >> Yes, sir. >> We none of this just see it. It's just It's all there. He had glasses on when he was sitting in the driver's seat. You see that? But you're saying that you noticed he had glassy eyes. >> Yes, sir. >> In the few seconds you looked at him? >> Yes, sir. >> Do you know glassy eyes is not a sign of intoxication at all? >> No, sir. I'm sorry. >> [clears throat] >> Are you agreeing with me that I'm right or you're arguing with me that I'm wrong? >> No, red bloodshot eyes is glassy eyes. >> I didn't ask that. I said glassy eyes through his glasses. Did you know that according to your NHTSA training, all the clues, glassy eyes are not a sign of intoxication? >> That's right. >> So, you're agreeing with me. >> Yes, sir. >> So, why in the world would you write that and try to tell the jury that's a sign that's another sign of intoxication you're telling them. It doesn't even prove intoxication. Why? Why are you doing this? >> I never said that glossy eyes proves intoxication. >> You They asked you to list you know, we're taking notes over here, right? You see us over here. We're writing things down. They asked you what signs and more than one time slurred speech. Which we didn't hear. Glossy [snorts] eyes. You said that. >> Mhm. >> Are you saying now you didn't say it? >> No, I didn't say it. >> You know that that's a vital sign of people being alive. You have liquid on your eyes. If you don't, there's a real problem. >> Mhm. >> Are you You ever thought about it that way? >> I never thought about it. >> Well, then why are you trying to tell these folks that there's things that you probably didn't even see and trying to tell them that man he was intoxicated. Doesn't sound like you're being real fair or neutral to me. >> But I never said that he was intoxicated. >> You never did. >> No, sir. >> The only thing that I said >> And you could have refused the SFSTs. Which stands to prove to me that he was intoxicated highly evidence of intoxication. >> Okay, you never said he was intoxicated. But he refused the SFSTs and that said he was intoxicated. I'm just repeating what you just said. You know, [clears throat] have you ever heard the saying if you tell the truth you don't have to remember what your answers were or you don't have to remember what you said. >> Right. That's correct. >> They kept asking you to tell us your opinion about what did you base your decision on and you decided 59 for mental faculties, physical faculties. I mean, we didn't see any stumbling. You Glossy eyes are not a sign of intoxication. I think you even said it droopy eyes, didn't you? >> Yes, sir. >> I wrote that down. >> Yes, sir. >> For God's sake, show me where you wrote droopy eyes that any of your offense reports, probable cause affidavit, blood warrant called it in on your MDTs. Show me one place where you said when you wrote this offense report after this arrest that he had droopy eyes. Show me. >> This is the first time I've ever said it. >> It's first time ever, today. You saw you throw that in there? >> No, sir. >> Well, you did. You did Yes, you did. You just decided you would throw that in there because you did throw it in there. >> Okay. >> [clears throat] >> Did you ever tell anybody that before today? >> No, sir. >> You know, there's a picture of his mugshot that they have in color. This black and white. If he's got red eyes, droopy eyes, wouldn't you want to show the mugshot in color to prove to the jury what you're saying is true? That'd be pretty powerful evidence, right? So, you I mean, you've probably been in a Have you ever been in a trial before? >> No, sir. It's my first time. >> There's no alcohol in the vehicle. That's a question. >> No, sir. >> The state asked you a question, did you form the opinion of whether or not he was intoxicated? You stated that wasn't able to do or you weren't able to do the field sobriety test to determine if he was intoxicated or not. Correct? >> Yes, sir. I just said that he refused. He just said he refused. >> Right. I'm saying you were not able, you said, to you do the field sobriety test to determine if a person's intoxicated. >> Correct. >> You were not able to determine if he was intoxicated. >> Correct. >> And you have stated twice or more you never said you thought he was intoxicated. >> Correct. >> Okay. Okay. But you arrested him, put him in cuffs. He was in custody. You even called it in on your radio, one in custody for DWI. >> Yes, sir. >> But you didn't think he was intoxicated? Right? >> It's hard to I mean >> [cough and clears throat] >> I I Judge I'm going to ask her anything I can. I I object to the I don't know what else to >> Okay. All right. >> Ask witness to leave. >> All right. >> May this witness be excused? >> Yes, sir. >> Yes, okay. This is fine. Thank you so much for coming. This is fine. You're excused. You can say goodbye. >> Any other on a subject to recall? >> [snorts] >> I'm I'm releasing him. >> Okay. Uh I think it's good to have a break. Do you want to take a break or do you want to >> All right. Just Good luck. >> All right. Please be seated. Tyler You had a motion. >> Uh I have Well, I have a motion to suppress the arrest. >> Um no probable cause. I think there's no credibility at all with this sign. >> I'm going to grant it. I'm going to grant the motion. >> And all the evidence that came after the arrest. >> After completing his questioning of the officer, the defense attorney made a {quote} motion to suppress, which is a request that a judge exclude evidence from trial on the grounds that it was obtained through an unconstitutional search or seizure. Here, the defense tied that request to the arrest itself, and Judge Fleischer granted the motion after seemingly concluding that the arrest was not supported by probable cause. Under the so-called exclusionary rule established by the Supreme Court in the 1961 case of Mapp v. Ohio, evidence obtained by unconstitutional searches and seizures is inadmissible in state criminal court, so that the government cannot benefit from Fourth Amendment violations. Accordingly, by granting the motion to suppress, Judge Fleischer determined that the state could not use evidence obtained because of Mr. Martinez's arrest, including evidence collected during the arrest or after he was taken into custody. This proceeding demonstrates how the exclusionary rule operates as a concrete check on government overreach by denying the state the evidentiary benefits of an unconstitutional arrest. A motion to suppress requires the court to decide whether the government may place particular evidence before a jury. And Judge Fleischer's ruling in this case reflects the principle that evidence obtained through an unlawful seizure cannot be used to secure a conviction. Additionally, the defense attorney's effective cross-examination in this case served as a separate safeguard against overzealous policing and prosecution by exposing inconsistencies and inaccuracies in the officer's testimony, leaving the state with a record that could not reliably support the arrest. After it became clear that the officer's account could not withstand scrutiny, Judge Fleischer addressed the constitutional question directly and suppressed the arrest and any evidence that was obtained from it. Taken together, the cross-examination and the suppression ruling show how constitutional limits are enforced in practice, with defense counsel scrutinizing government testimony for accuracy, and judges ensuring that prosecutions do not proceed using evidence derived from unconstitutional arrests. Let us know if there's a case or courtroom interaction that you'd like us to explore in the comments below. Thank you for watching, and don't forget to like and subscribe so we can help foster a more informed society. >> [music] [music]