Lawyers Say Ogg Guilty of “PWI”
Here is a fact pattern that would be a slam dunk DWI case for any prosecutor in America: A man passes out behind the wheel of his car, blows a breathalyzer reading above the legal limit, and then admits to having consumed “10-12” drinks.
Yet, last week in Houston, despite nearly two years to prepare between the arrest and the trial, a case with these facts ended in a not guilty verdict. Lawyers in Harris County told Houston Watch that it is unsurprising that prosecutors in Kimbra Ogg’s Harris County District Attorney's Office managed to snatch defeat from the jaws of victory. In fact, the defense bar has an expression for this kind of frequent blunder—PWI, or prosecuting while incompetent. Thankfully for Ogg, it’s not a real crime—otherwise, there could be some serious jail time on the table.
In this particular case, the prosecutor lost credibility by introducing a type of junk “science” known as “horizontal gaze nystagmus test,” which purports to measure bouncing eyeballs as a sign of intoxication. In addition to the fact that no credible science supports this theory, even the name—horizontal gaze nystagmus test—sounds made up. Courts across the country look at this test with deep skepticism, and the Kansas Supreme Court even banned its use after finding that “[t]he test has no more credibility than a Ouija Board or Magic 8 Ball.”
Now, that’s PWI. And sadly it isn’t the only drunk driving case that Ogg’s office lost this year. In fact, a Houston Watch analysis found that *in 2022 alone* Ogg’s prosecutors suffered not guilty verdicts in at least thirteen additional driving while intoxicated cases. Here’s a sampling of facts from some of those cases:
Just weeks before Kim Ogg was sworn into office, a man was convicted in Harris County for driving while intoxicated. Years later, he was arrested for driving while intoxicated again. This time, Ogg’s prosecutors took him to trial. They thought the man was so dangerous that they asked the judge to set bail at $10,000. But the prosecutors couldn’t land the plane, and the man walked out of the courtroom after the not guilty verdict with car keys in hand.
A man with a previous driving while intoxicated conviction was arrested again in 2021 for cocaine possession. Ogg dismisses the case after he completes a “pre-trial intervention program” that really taught him a tough lesson by requiring him to do things like staying off cocaine and booze. But it became clear just months later that he couldn’t stay off the bottle, not even while driving. He was arrested for driving while intoxicated and a lab analysis showed that his blood alcohol content level was clearly over the legal limit. For any competent prosecutor, this case is an easy lay-up. But not in Kim Ogg’s Harris County—another not guilty verdict.
The police arrest a man for driving while intoxicated, and in the process they document that he even had an “open container of alcoholic beverage in his immediate possession.” To make things easier for the prosecutor, a breathalyzer showed that the man had a blood alcohol content level far over the legal limit. Talk about getting caught red handed. And yet, once again for Ogg’s prosecutors—a not guilty verdict.
Ogg recently told the Houston Chronicle that “Houston is ground zero for DWI fatalities” and "really couldn't do worse." That’s not hyperbole. More people die from drunk driving in Harris County than in Los Angeles County, a jurisdiction with five million more residents. Ogg’s high profile losses in drunk driving cases might help explain why. The most important factor for deterring crime is accountability—creating the sense in the public that if you drive drunk, you will be found guilty. But in Harris County, under Kim Ogg, this is no longer true. Even if you’ve been convicted of DWI before, there’s a good chance that you can just walk out the door, head straight to the bar, and drive drunk again with no consequences.
“No family should live with the pain of getting that knock on the door in the middle of the night,” Kim Ogg told the Chronicle. But she left out the even worse pain of knowing that the person who killed your loved one was never held accountable; and, in fact, is free to do it again.