Damning or dismissal-worthy? DWI experts weigh in on Marc Whyte arrest video

SAN ANTONIO – San Antonio Councilman Marc Whyte has already suffered professional consequences for his DWI arrest in December, but it’s not yet clear how his criminal case could go.

KSAT interviewed two DWI experts about the recently released video of Whyte’s arrest. While they differed on how well San Antonio Police had conducted the stop, both acknowledged the video was not nearly as damning as the one police had released of his predecessor, Clayton Perry.

“He is not — and I promise you this — he is not the most intoxicated individual I’ve ever seen,” attorney and former SAPD officer Anthony Bancroft said after watching body camera footage of the arrest.

Whyte was pulled over on Dec. 29 after SAPD said he was speeding and hadn’t properly signaled a lane change. The councilman admitted to having three drinks over the course of the evening and was arrested after undergoing a battery of field sobriety tests.

He refused a breathalyzer, so police obtained a blood draw warrant to measure his blood alcohol content instead. The results of that test are still pending.

Whyte is scheduled to be arraigned on Jan. 30. Meanwhile, his council colleagues have censured him, and he has been temporarily stripped of his council committee assignments.

Bancroft was a longtime SAPD’s DWI Task Force member and still trains cadets at the Alamo Area Regional Law Enforcement Academy on standardized field sobriety testing. While he wouldn’t venture whether Whyte was truly intoxicated, the former officer said he would have also made the arrest based on what he saw in the footage.

“What I can see on the bodycam, I feel as though (the SAPD officer) did, in fact, offer (the field sobriety tests) correctly,” Bancroft said.

However, Bancroft said he could not speak to the horizontal gaze nystagmus (HGN) test because he couldn’t see it in the body camera footage.

The HGN test, which looks for involuntary jerks of the eye, is one of the three standardized field sobriety tests during DWI stops, along with standing on one leg and a walk-and-turn balance test. The arresting officer administered all three and two supplemental tests: counting backward and a partial recitation of the alphabet.

While Bancroft praised the officer’s investigation, Joe Hoelscher, a DWI defense attorney, said “all three” standardized tests were either conducted or instructed improperly.

Hoelscher pointed to multiple things he said were issues with the HGN test that could cause a false positive: flashing lights were in Whyte’s view, the test was conducted at the wrong angle, and the officer holding Whyte’s gaze too long.

Hoelscher also said the officer’s instructions on the walk-and-turn — a test over which Whyte was visibly confused — were unclear.

So in this situation, SAPD very likely caused a false positive and would have made an arrest,” he said. “But the evidence that they have in that video is all terrible evidence for the state. All of it shows a bad DWI arrest.”

“With a good judge,” Hoelscher said, the results of the blood draw should be excluded because of the issues he pointed to with the testing.

He and Bancroft also disagreed on how important the results of that blood test would be for a conviction.

With his misgivings over the field sobriety testing, Hoelscher said, “This case depends, in my opinion, almost entirely on what happens with the blood draw.”

If Whyte ends up under the legal limit of 0.08 BAC, Hoelscher said, the case would be hard to prove and should “probably be dismissed.”

However, someone “not having the normal use of mental or physical faculties” due to alcohol or drugs is enough to warrant a conviction under Texas law.

“I have seen many, many juries convict without a chemical test,” Bancroft said.

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