State of Texas v. Charles Herr

March 27-28, 2017

Charles Anthony Herr, 24 years-old, sits next to his defense attorneys Ryan Kreck and Eddie Cawlfield at the Collin County Courthouse, awaiting the jury to reach a verdict for his trial.

While initially appearing as an open and shut case, certain revelations have left the ultimate decision of the jurors anyone’s guess.

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Judge David Rippel presided over this case.

Herr is being charged with driving while intoxicated after being arrested on the night of April 14, 2016. Herr was reportedly speeding at around 55 mph on a 45 mph street, a few blocks from the shops of legacy – a district in Plano that offers shopping, bars and restaurants. After noticing Herr’s vehicle not come to a complete stop when turning on a red light, and then speeding by a construction zone, officer William Dover of the Plano Police Department pulled the vehicle over. Smelling alcohol coming off of Herr’s person, Dover conducted a field sobriety test. Concluding the test, Herr was arrested for DWI.

After arriving at the police station, Herr refused to have his blood alcohol concentration (BAC) tested, upon which a warrant was requested and granted roughly three hours later. Weeks later after Herr’s blood was tested, it was revealed to have a BAC of .137, well over the legal limit.

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The bar Herr supposedly was drinking at.

The two state prosecutors, Courtney Floyd and Emily Doron, call their first witness to the stand: officer William Dover. The state prosecutors go over the events of that April night with the police officer, emphasizing and discussing any abnormalities with Herr’s behavior.

“[He was] trying to hand me his license [right away], which is out of the norm.” said Dover. “[I] smelled the odor [of alcohol].”

Dover said that Herr was overly chatty, and that he spoke “thick tongued.” He also mentions how Herr took a selfie with the officer, which he thought was out of the ordinary. Dover explains the tests he asked Herr to perform, being the nystagmus test (eye test), the walk and turn test, the one leg stand test, all part of standardized sobriety testing. Dover also had Herr perform the alphabet test (recieting the alphabet from a certain letter to a certain letter without singing), and counting backwards, both of which are not standardized.

“He didn’t touch heel to toe,” said Dover, speaking to one misstep on the walk and turn test. “[but] he did… rather well.”

The only test Herr did not pass was the nystagmus test – Dover noted the jerkiness of his eye movement, something he compared to the movement of obstructed windshield wipers.

The state prosecutors argued that due to Herr’s past military service, he was exceptionally coordinated, thus explaining away his passing of the majority of the sobriety tests.

The defense objects to this argument, stating that claim was pure speculation, and that Dover has no education or training to speak on the validity of such a claim. The judge calls both the defense and the prosecution to the stand, and white noise is then played over the loudspeaker to drown out their discussion.

The defense then cross examines Dover, and brings up an important moment in the arrest video. After the last sobriety test had been issued to Herr in the arrest video, Dover is seen walking towards his police car, and can be heard saying “[He did well], but I don’t know.”

This, the defense argues, is clearly a sign of reasonable doubt, exhibited by the arresting officer at the scene, and thus, this reasonable doubt should be shared by the members of the jury.

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Eye jerkiness is involuntary, making nystagmus tests virtually impossible to ‘beat.’

The state prosecutors bring their second and final witness to the stand, Nirav Kumar, who works at forensics with the Texas Department of Public Safety. The prosecution asks the witness if it could be possible that Herr’s BAC could have been below a .08 at the time of arrest.

“Yes, it’s possible,” said Kumar. “If it was beer, it would have to be a significant amount.”

The prosecution continues to ask Kumar a series of questions, building the validity and accuracy of the testing he performs.

The Defense, in cross examination, argues that despite the accuracy of the testing, the margin of error that was self-admitted by Kumar further fuels a reasonable doubt that Herr was intoxicated while he was operating his vehicle.

And after about 9 hours after the trial had started, it was adjourned for the day, to be picked up the following Tuesday morning at 9:00 AM.

At 9:00 AM, Tuesday, the trial continues. One of the six jurors reported having stomach pains and was in the hospital – after a short deliberation, both the defense and the prosecution agree to continue the trial with only five jurors.

The prosecution opens with their closing statement.

“This case is about intoxication,” said Doron. “Honestly, it’s not really in question.”

Doron says that the BAC reading of .137 speaks for itself, and reminds the jurors that during voir dire (the preliminary examination of a witness or a juror), most agreed that a BAC of .08 or higher would be all they needed to reach a guilty verdict.

Kreck then approaches the jury.

“This is a case that’s gonna show you how easy it is to be arrested [in Collin County for DWI],” Kreck said. “He passed those tests with flying colors. Sounds like reasonable doubt to me.”

The prosecution, in its final rebuttal, attacks Kreck for his phrasing.

“I believe, I believe, I believe (mimicking Keck’s closing statement),” said Doron. “You know what doesn’t matter in here? What he believes. He didn’t have his normal faculties. What matters is that score.”

Lastly, she brings up the fact that Herr misplaced his heel slightly more than half an inch away from his toes on his other foot during the walk and turn test.

“[Kreck said] it’s just half an inch,” said Doron. “Half an inch [while operating the gas peddle] is a matter of life and death.”

The jury was then dismissed to deliberate in their quarters. After quite a long deliberation, the jury reached a verdict. They found the defendant guilty. Herr was sentenced to 180 days in jail, and will be required to have a deep lung device (essentially requiring the passing of a breathalyzer to start a motor vehicle) to be installed in his vehicle. Herr will also have to serve community service, and attend alcohol education classes.

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