Fighting a DWI Case - Why Any Case is Winnable
Many people mistakenly believe that they cannot fight a DWI, especially one with relatively high breath or blood alcohol score. While intoxication is a disputed issue in many DWIs, it is far from the only defense issue. This guide explores some non-intuitive defenses to a typical DWI case.
Were you Legally Stopped by the Police?In Texas, it is presumptively illegal for the police to stop you without a warrant. A stop means a traffic stop of your vehicle or a temporary detention of your person for purposes of investigation. A person is considered "seized" within the meaning of the 4th amendment if his or her liberty restrained, i.e. he or she is not free to leave. Because a stop is considered a restraint on your liberty, the police must have a justification if it is done without a warrant.
In order for a warrantless stopTo justify a warrantless stop, the State must prove by a clear and convincing evidence that the police officer had "reasonable suspicion" to believe you committed a crime in order to justify a warrantless stop. Reasonable suspicion requires "specific and objective" facts that criminal activity was afoot. A mere suspicion or hunch ("he looked like he was up to no good") is not sufficient.
If you were stopped by the police without committing a traffic violation or other illegal conduct, your lawyer may be able to suppress key evidence for the State's case such as: If the police officer claimed to stop you for a traffic violation, the State must prove that traffic violation in Court.
If the State cannot justify the legal basis for the stop, your defense attorney can ask that the Court suppress all of the evidence obtained as a result of the stop. This means that the dash-cam video, field sobriety tests, blood or breath tests, and any statements you made cannot be introduced into evidence at your trial.
For purposes of most DWIs, a successful motion to suppress effectively ends this case as the State has no evidence left that can prove its case.
Were You Legally Arrested by the Police?In Texas, it is also presumptively illegal for the police to arrest you without a warrant. Under Texas law, a person is arrested when a reasonable person in the situation would not feel free to leave. Because an arrest is considered "seizure" within the meaning of the 4th amendment, if the police arrest you without probable cause, any evidence that is obtained as a result of such an arrest is tainted and subject to being suppressed. In other words, if your attorney can show you were wrongfully arrested, the State may not use any evidence obtained as a result of that arrest at trial.
The State must prove by clear and convincing evidence that a police officer had "probable cause" to believe you committed a crime in order to justify a warrantless arrest. If you look good or "normal" on video, the basis of the arrest is almost always the claim by the arresting officer that you failed standardized field sobriety tests. If you are 21 years of age or older, the Police cannot simply arrest you based on the odor of alcohol or an admission of drinking because drinking and driving is not per se illegal. It is only illegal to drink and drive if you are driving while intoxicated.
Because Police rely on Standardized Field Sobriety Tests (SFSTs) to justify most DWI arrests, one way to defeat a DWI can be to successfully attack the SFSTs themselves. SFSTs are notoriously unreliable, subjective, and biased. While SFSTs are generally admissible in Court as evidence, there are exceptions to that rule.
The SFSTs are only admissible in evidence if the arresting Officer is properly trained and certified in the administration of SFSTs. The Officer must also administer the SFSTs strictly in accordance with the protocol set forth by the National Highway Traffic Safety Administration (NHTSA).
If you were arrested for DWI on the basis of allegedly failing SFSTs, and the Officer failed to administer those SFSTs properly, your performance on the SFSTs cannot be held against you, and the arrest will likely be held illegal.
An illegal DWI arrest almost always results in the State being unable to offer into evidence a breath or blood test score because under Texas law, it is the arrest that allows a police officer to ask for your blood or breath for testing.
Can the State Prove Driving?While this not an issue if you were pulled over in a traffic stop, it can be an issue if the police made contact with you after you had stopped driving. If your DWI arrest started out as a collision or in a parked car, there may be an issue as to whether the State can show you operated the vehicle.
Who saw you driving? Was your vehicle already pulled over or stopped when police arrived? Can the Police show you were intoxicated while driving? How much time had passed since you last operated the vehicle and can the State tie your BAC score to the time of driving?
It doesn't matter how intoxicated you are unless the State can show that you operated a vehicle WHILE intoxicated.
Validity of the Blood Search Warrant?If you refused a breath or blood test, the police may have applied to a Judge for a search warrant to get your blood drawn and tested. If that happened, the police officer had to write out a search warrant affidavit under oath and submit to a judge or magistrate for review. Because police often use pre-printed forms for these search warrant affidavit, they can be rife with mistakes, oversimplifications, and misstatements.
Under Texas law, any evidence obtained with a search warrant can be challenged if the search warrant affidavit turns out to have been deficient. For example, did the Police officer properly describe the specific reasons he had probable cause to believe you committed the offense of driving while intoxicated.
Also, certain Texas statutes, a blood search warrant cannot be obtained unless the person refuses a voluntary breath or blood test first. If you the police never asked for you a breath or blood test, or you never refused, and the Officer falsely represented in the search warrant affidavit that you refused, the search warrant may be invalid.
An invalid search warrant will often result in the blood alcohol concentration score being kept out of evidence, which is typically fatal to the State's case.
Other issues with search warrants can arise. For example, if the original search warrant has been misplaced, a copy will not suffice. The State must offer the original warrant or a certified copy, and if it cannot do so, the warrant will be considered invalid.
Once the State had to dismiss a client's case because the judge's signature was illegible and the Officer failed to identify which Judge signed the warrant in his offense report. By the time case got to Court a year later, the Officer had no idea who signed the warrant and neither did the Prosecutor.. The State ended up dismissing the DWI and offering the client a charge of obstructing a roadway.
Mistakes happen, and you'll never know whether they happened in your case if you don't have an attorney who is willing to investigate and find out.
Can the State Get Its Witnesses to Court?Because the State has the burden of proof, if you choose to fight your case, the State must get at a minimum the arresting officer and lab analyst to appear as witnesses in court at your trial. DWI trials often take months, or even years to get called to trial. If the State cannot get its witnesses to the Courtroom when your case is called to trial, the State will have to dismiss the case.
*Police Officers can be transferred, moved, deployed, or no longer working by the time your case is called to trial.
*Lab analysts who test blood can be transferred, moved, or no longer employed by the time your case is called to trial.
*For prescription medicine and non-alcohol DWI case which are tested at an out-of-state lab, the State may choose not to spend the money to fly the witnesses in for your trial.
Pretrial Diversion Dismissals?If you are US Military Veteran or you have multiple pending misdemeanor DWIs, you may be eligible to participate in a pretrial diversion to get your case dismissed.
Veteran's Court is a treatment court geared for US military veterans who find themselves involved in the criminal justice due to an untreated mental or psychological issue. The goal of Veteran's Court is to provide supervised treatment. A common scenario is a military veteran with a DWI or domestic violence case that arose because the veteran was drinking to self-treat PTSD, stress, anxiety, or depression. If you are accepted into Veteran's Court and successfully complete it, your DWI will be dismissed and expunged.