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Texas DWI Trial/Motion to Suppress

Houston, TX |

If the motion to suppress is being carried and heard on the same day as a DWI Trial, will the state subpoena the arresting officer twice? One for the motion and one for the trial?

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Attorney answers 3

Best Answer

No. The State will only subpoena the officer one time and he or she will stay there all day if necessary. If the officer needs to appear another day (the next day, or even a month later) then the judge will just swear that officer to return on that day...which has the same legal effect as a properly served subpoena.

Another tactic that a lot of Harris County judges are using is to "carry the suppression issue with trial," meaning that you won't get a full suppression hearing before the trial. This method is worse for the defense but the judges like it because they don't have to hear the same testimony twice. Presumably, as long as the defense lawyer properly objects before the evidence in question is admitted, the judge can exclude it if it was illegally obtained (which may then lead to a directed verdict).

Finally, you should file a proper BUT VAGUE motion to suppress before the trial and prepare BUT NOT FILE a very factually and legally specific brief supporting the motion. At the proper time (which is after the testimony is closed on the issue but before the judge has ruled) you will file this brief in support of your motion. That way you don't give the prosecutors a chance to woodshed their witnesses ahead of time and prepare to defeat your case.

Make sure you have a qualified and experienced DWI lawyer assisting you.


Some cases hear the suppression first, and if you lose that, go directly into the main trial. It may occur all at the same time, with one going first and then the second. Once the officer is subpoenaed he will be there and stay there until the judge excuses him.

You need an attorney to get the facts, and research the cases for you to have ANY chance whatsoever to win the suppression hearing. The above question should have been answer in close consultation with your criminal attorney.

The suppression should be FULLY RESEARCHED and FULLY BRIEFED long BEFORE you go to trial. Search and Seizure isues are FACT INTENSIVE.

If you don't have an attorney yet, the below link is to the Harris County Criminal Lawyers Association. (of which I used to be a member).

Call and hire a criminal attorney and prepare-prepare-prepare!!

Curt Harrington Patent & Tax Law Attorney Certified Tax Specialist by the California Board of Legal Specialization PATENTAX.COM This communication is general information and not legal advice, and does not create an attorney-client relationship. This communication should not be relied upon as any type of legal advice. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm.


The State will only subpoena the office once. If you file a Motion to Suppress most courts will allow you to either have a pre-trial hearing on your motion or to carry it with trial. As a DWI attorney, I almost always carry mine with trial. The reason I do so is simple. The State can appeal a pre-trial motion, they cannot (usually) appeal a trial motion.

For example, lets assume the officer's reason for stopping you is because you failed to stop at a designated stopping place (i.e., behind a stop sign). If we have a pre-trial motion to suppress regarding that issue and the judge agrees with the defense, the state can then appeal that decision to the court of appeals. If the court of appeals disagrees with the lower court judge, they can reverse his/her decision and remand the case back for trial.

If the motion ir ran with the trial and the judge grants the motion, typically a directed verdict of not guilt is delivered by the judge. Once a defendant is found "not guilty" the judges ruling on the motion to suppress cannot be appealed. The case is over at that point for the defendant.

Troy Burleson

Carl David Ceder

Carl David Ceder


I am filing one tomorrow on a "try or dismiss" setting, mine is the oldest case too. Great advice. And congrats on your marriage. I wish you the best. I respect you as much as any DWI attorney I've met, and I have practiced in counties from Austin and all surrounding counties, up through the counties on 35, and everywhere in the Metroplex. I will let you know if it works or not. Write before the BT, my guy asks OFC "will this be on my record forever?" To which OFC responds: "No, it goes away over time, provided you right the process and depending on what you put into it." I don't even know what this means. But, my guys takes the arrest like a man, but he is a CDL holder, I got his ALR dismissed, everything has been great, but a conviction means that this man won't be able to provide for 3 kids and a wife if convicted. That is a clear Erdman violation, right? You can't seal or expunge a DWI unless you are acquitted (and no sealing of records) and furthermore, it has nothing to do with DIC warnings, it is totally extraneous and to me, it is clear that while not intentional, it amounts to "coercion" under Erdman. This guy you can tell took the breath test only because of how the officer responds to his question. Anyway, if you care to know, I will let you know how it goes. Also - I just lost a .10 blood test in Judge Wilson's court, but used your CLE materal on "East Test" blood draws a lot. I wanted to ask you at some point because I wasn't able to make it, what is the "donkey analogy?" I'm sure it is good. If I use it and I am successful, I promise to always give you credit, as I do with Jamie Balagia, the DWI Dude, Trichter, Mark Thiessen out of Houston, all the Burrows stuff I use (which maybe I shouldn't anymore, because evidently it's outdated and he doesn't even use it anymore), etc.