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From just reading the record, you'd think Houston police had a pretty strong case against Dr. Steven Forrest Hotze, the 50-year-old conservative activist whose weaving auto was stopped in the early-morning hours last October.
Officer J.S. Miller, who arrested Hotze for driving while intoxicated, said the doctor's maroon Ford Expedition drifted from lane to lane as he drove west on Memorial. Hotze was headed to his Tanglewood home after a Rainbow Lodge dinner honoring a tobacco shop.
Miller claimed Hotze's vehicle nearly struck his patrol car, and that when the officer honked, Hotze swerved back across a lane and nearly hit another vehicle. Miller pulled Hotze over on a side road in Memorial Park and put him in the backseat of his patrol car.
Officer M.R. Adams arrived a half-hour later and administered sobriety tests on videotape after Hotze refused a Breathalyzer. According to Adams's report, the good doctor's eyes were bloodshot and glassy, his speech was slurred, he swayed on his feet, and his breath smelled strongly of alcohol. Officer Adams claimed Hotze exhibited six of the standard clues that indicate inebriation.
Hotze signed a statutory warning form executed by Sergeant E.B. Robinson. It includes this statement: "I was out having a smoke and drinking some vodka tonics. I would like to call my attorney Rusty Hardin."
Given all that evidence, you might wonder how Steven Burger, the Texas Department of Public Safety administrative license revocation (ALR) judge, could conclude that the police had no justification for stopping and arresting Hotze.
Under Texas law, anyone refusing to take a Breathalyzer after a police DWI stop is subject to a 60-day suspension of driving privileges -- whether or not they are later prosecuted. Drivers can appeal the suspension at an ALR hearing before a DPS-appointed magistrate.
"Yates argued that any weaving was a result of Hotze talking on a mobile phone, and he introduced phone records as evidence," Elliott wrote in a piece on proposals to toughen state laws requiring DWI breath tests.
The cell-phone defense outlined drew ridicule from Hotze's prosecutor, Lyn McClellan, the district attorney's misdemeanor section chief.
"I could be driving down the road eating a hamburger and drop a pickle in my lap, and be fishing around trying to get the pickle out of my lap and the stain off of my clothes," McClellan commented dryly. "So I'd be guilty of driving while eating. But if I start weaving, an officer driving behind me would be totally justified in stopping me for failing to drive in a single marked lane."
Puzzling over the magistrate's ruling to the contrary, The Insider trekked out to the ALR office on the North Freeway and got a copy of the tape of the Hotze hearing. It revealed that, contrary to the Chronicle report, Yates never argued that a cell phone caused his client to weave. Instead, the judge had a much more logical reason for letting Hotze keep his license: Officer Miller ignored a subpoena and failed to appear at three different settings for the hearing.
"I think that's enough opportunities for the guy to be here," Judge Burger declared during the hearing. He accepted as evidence the reports signed by Officer Adams, who was at the hearing, but ruled that they could not be considered in any decision on the legality of the traffic stop.
Oddly, Yates did not see the golden opportunity being gift-wrapped for him. He asked the judge to reset the case until Miller could be present. Yates explained that he had called Miller's superiors in the HPD Accident Division and was told he was working overtime and would not be at the hearing, despite the subpoena.
Just as oddly, the DPS attorney, Tracy Gutierrez, opposed rescheduling the case -- thus blundering forward to a preordained defeat. Burger then ruled that the state had no evidence or witnesses regarding the stop of Hotze, so he found that it was unjustified and Hotze could keep his license.
Chronicle reporter Lisa Teachey recently wrote that Yates told her "a different hearing related to the case has already determined that not enough evidence existed to suspend Hotze's driver's license." Once again, Yates neglected to mention that the "lack of evidence" was the failure of the officer to show up at the hearing.
HPD communications director Robert Hurst did not answer an Insider inquiry as to why Miller did not obey the subpoena and go to the hearing.
It was just the latest lane weave in a case that indicates when a man of God gets popped for DWI, the Divinity can work in strange, strange ways on his behalf.
Previously, the D.A. dropped DWI charges against Hotze when Adams, the officer who conducted the sobriety test, was charged in an unrelated case with colluding with a wrecker driver in falsifying tow slips. A grand jury no-billed Adams, removing the obstacle to prosecuting Hotze.
The Hotze case is under close media scrutiny partly because the Republican activist was one of the earliest major supporters of the successful candidacy of Chuck Rosenthal to succeed Johnny Holmesas D.A. The new district attorney denies his supporter received any preferential treatment from his office, and expects the DWI charges to be reinstituted soon.