Page 30 - May June 2020 TPA Journal

him to turn off the car’s engine. The driver, glossy red eyes and a mild odor of an alcoholic
Forbes, complied and produced his driver’s beverage emitting from his breath and person. I
license. Deputy Paige and Forbes exchanged brief asked [Forbes] to perform some field sobriety
pleasantries before the deputy asked, “What was tests to determine [his] level of intoxication,
that about?,” referring to Forbes’s acceleration. including the Horizontal Gaze Nystagmus Test,
Forbes responded, “I am a dumb a**.” Deputy the One Leg Stand Test[,] and the Walk and Turn
Paige asked Forbes a few questions about his Test. . . .
whereabouts that evening, and Forbes claimed he [Forbes] refused to perform the Horizontal Gaze
was coming from dinner at a restaurant. Given the Nystagmus Test, the One Leg Stand Test[,] and the
hour, Deputy Paige further inquired if Forbes was Walk and Turn Test.
eating dinner until 2:00 a.m. Forbes answered, Therefore, I placed [Forbes] under arrest and
“Pretty much, yeah.” transported [him] to the police station. At the
station, [I] offered [Forbes] an opportunity to
Deputy Paige then asked Forbes to step out of the provide a sample of [his] breath and/or blood and
Corvette and stand near the trunk. The deputy [Forbes] declined to provide a sample. This is a
performed a protective pat down and asked Forbes violation of the Texas Implied Consent law and is
how much he had had to drink that night. Forbes also an indication to me that [Forbes] is
did not offer an oral reply, but put his hands out as attempting to hide evidence of [his] level of
if offering his wrists for handcuffs. Deputy Paige intoxication.
asked, “That much?” Again, Forbes did not reply.
Deputy Paige then asked, “You’re not gonna say The magistrate judge issued a warrant for a blood
anything?” This time, Forbes answered, “No, sir.” draw, which was taken around 4:00 a.m., an hour
Deputy Paige handcuffed Forbes, patted him and a half after the traffic stop. Forbes’s blood-
down a second time, and placed him in the patrol alcohol content was 0.09, exceeding the legal
car. When the pair arrived at the Houston Police limit of 0.08.
Department, Deputy Paige asked Forbes to
provide a breath or blood sample. Forbes declined. The case against Forbes was eventually dropped,
So Deputy Paige sought a warrant to conduct a and Forbes brought suit against Deputy Paige and
blood draw. The warrant affidavit, which Deputy Harris County, asserting Fourth, Fifth, and
Paige reviewed and signed but did not transcribe, Fourteenth Amendment violations under 42
provided that: U.S.C. § 1983. Forbes alleged that Deputy Paige
arrested him without probable cause and made
[O]n July 25, 2015[,] at approximately 2:35AM, misrepresentations to the magistrate judge to
[I] was on patrol on 20300 Hardy Toll Rd., a obtain the blood-draw warrant. He also alleged
public place and public road located in Houston, that Harris County had a policy or custom of
Harris County, Texas when [I] observed a white making DWI arrests without probable cause and
2015 Chevrolet Corvette motor vehicle weaving was deliberately indifferent to the need for
inside of its traffic lane. As [I] got closer to the training. The district court granted summary
Corvette, [I] observed it to rapidly accelerate away judgment against Forbes on each claim.
from [me] so [I] conducted a traffic stop, made
contact with the driver of the Corvette and On appeal, Forbes challenges only the district
identified him by his Texas Driver’s License . . . as court’s grant of summary judgment with respect to
Jonathan Robert Forbes. I came into contact with Deputy Paige. He asserts that Deputy Paige (1)
[Forbes] and noticed him to have slurred speech, violated the Fourth Amendment when he placed

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