KEVU – by TONY PLOHETSKI / KVUE NEWS and Photojournalist DEREK RASOR
AUSTIN — One man endured a night in jail and a criminal case hanging over his head for year, only to have prosecutors say they don’t think he was even guilty of a crime.
It happened Jan. 1, 2013. Austin police pulled Larry Davis and his vintage Buick over in Northeast Austin after running a red light. Soon, they were investigating him for drunken driving. Then he was arrested.
Davis insists he only had one drink that night. A voluntary breath test showed he hadn’t had too much to drink. He blew a 0.00 on the breath test.
“I told them I would take a blood sample as well, just to prove that I didn’t have anything in my system,” Davis said.
That test looked for seven types of drugs in his system, and Davis tested negative for all of them.
When the evidence arrived on his desk a few weeks later, Davis’s lawyer couldn’t believe what he saw.
“My reaction was just shock that this happened,” attorney Daniel Betts said.
The Defenders first reported cases like this in a 2011 joint Austin American-Statesman investigation. One case was that of Bianca Fuentes, who blew below the legal limit of .08 in a breath test.
At the time, county prosecutors were dismissing about 30 percent of drunk driving cases – more than any major Texas county — because they said APD was bringing them weak cases that wouldn’t hold up in court.
A Defenders review finds similar statistics for 2013. Of 5,648 new DWI cases filed last year, 1,559, a little less than 30 percent, were dismissed.
Police are still abiding by a take-no-chances policy, even if it means the cases are later thrown out.
Police originally pulled Davis over for running a stop sign near Interstate 35 and Highway 290, and they say the officer arrested him based on his performance on a sobriety test.
But even police say his case is highly unusual. They almost never arrest a driver whose breath test was zero and whose blood tests came back negative.
Commander David Mahoney says the officer in Davis’ case believes he could have been on another drug – like marijuana – that wasn’t part of the drug test.
“If there is someone who is impared, we don’t want them driving. We need to get them off the road, so that was probably his mindset,” Mahoney said.
But now, Davis and his lawyer plan to file a grievance with the Austin Police Monitor’s office against the officer who arrested him.