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By Craig Malisow
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By Sean Pendergast
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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.
McClellan "dismissed it when we lost our key witness," says Rosenthal. "But now we've got our key witness back, and I think Lyn intends to pursue it."
Exactly when that might happen is another question. McClellan reports he is tied up in a major felony case and does not want to refile against Hotze until he has time to try the DWI case himself. He's also checking to make sure witness Adams is back in good standing with HPD.
Asked why he couldn't find another assistant D.A. capable of handling the DWI trial, normally a Prosecutor 101 assignment, McClellan laughed.
"That's what the judges always say," responds McClellan, who indicates a DWI against Hotze is not a run-of-the-mill matter. "I just feel an obligation to handle this case along with the chief of the court ... by [the media] asking about it, that's one of the reasons I'm handling it."
Hoof and Mouth?
Real estate businessman Michael Berry is one of the City Council candidates out on the hustings, running for the Position 4 At-Large seat being vacated by mayoral candidate Chris Bell. Berry says he has the support of several movers and shakers, including Bob Lanier and Ben Love.
Berry is also bucking some precampaign turbulence, including claims that he told a pregnant political consultant that her condition ruled her out for the job of running his race. It's a charge Berry denies.
Veteran consultant Nancy Sims says Berry left a message on her phone last December saying her pregnancy "troubled him." He had concerns that impending motherhood and her other campaign clients would prevent her from adequately representing him, she says.
"I was outraged," Sims says. "I've been in the business for 11 years, and I've always managed my business well and handled multiple clients. To say that becoming a mother would change my business, or that I wouldn't be the same consultant I've always been, was just insulting and something of a chauvinistic attitude."
Sims claims she'd already had problems with Berry because he was telling people he'd hired her before they'd ever even talked. It was after she had called him to arrange a meeting that Berry left the message that he'd hired conservative Republican consultant Denis Calabrese.
Berry says political opponents cooked up the accusation that he dumped her because of her pregnancy. "What I said was there was a number of factors that influenced me not to use her." He says she was handling Bell's candidacy, and he had heard from several people, including Chronicle writer Julie Mason, that Sims was retiring.
Sims says one of her clients, Councilman Gordon Quan, had told Berry months ago that the retirement rumors weren't true about Sims.
(In the interest of full disclosure, The Insider must reveal that he has known Sims since her days in the Kathy Whitmire administration nearly 20 years ago and considers her a good friend. Also, Sims and hubbie Chris Pando delivered a healthy seven-pound, 9.6-ounce son, Hunter Bryan Pando, last week at St. Luke's Hospital.)
Another hopeful making waves is former council aide Johnny Soto, who is considering running for the District I seat of term-limited Councilmember John Castillo, his former boss. In a rather offbeat e-mail circulated to friends last week, Soto denied he'd been fired from that job.
"Rumors of my death have been greatly exaggerated," wrote Soto. He noted that some unnamed people were having "Johnny Got Fired" happy-hour parties.
"The reality is that I resigned on my own free will leaving an office that was suffering from hoof-and-mouth decease" [sic].
As for his political plans, Soto struck a note as uncertain as his punctuation: "Speaking of running, the next phase would be to run for council.still polling that question. So far. if I run, I win,. hmmm?. ponder..ponder..."
Soto later e-mailed The Insider to say that his criticism was directed at Castillo staffers rather than the councilman. "Now this is like a bitter divorce," explained Soto, "because this is politics."
Councilman Castillo had a different take on Soto's departure. He says Soto pulled a Cheshire cat act, gradually disappearing without giving notice or resigning.
"Basically, he just quit coming to work," says Castillo. "We marked him off for time sick, and the rest of the time we marked him off on vacation. But it got to the point where this is my last year, I've got a lot of work to do, and I need all able hands on deck. I just had to terminate him."
As for that stuff about office "hoof and mouth decease," the councilman professes to "have no idea what that means."