7 Ways to Beat a DWI

In 2018, Texas law enforcement officers made almost 100,000 DWI arrests. These individuals must often deal with severe direct consequences, like mandatory drivers’ license suspension and extended court supervision. There are substantial indirect consequences as well, such as sky-high auto insurance rates and the stigma of a criminal record.

But people who are arrested for DWI are not necessarily guilty. In fact, if a defense applies, a Houston criminal defense attorney might be able to get the charges thrown out of court or, in the alternative, engineer a very favorable pretrial settlement. Some of the more common DWI defenses are discussed below.

1. Not Driving in a Public Place

Many people are surprised to learn that “driving” is not an element of “driving while intoxicated” in Texas. Operating the vehicle is sufficient.

glass of alcohol next to a set of car keysAnd, a person can be “operating” a vehicle under Texas law even if s/he is passed out drunk. However, if the defendant did not have the keys and/or the vehicle was not drivable, the DWI charges may not hold up in court.

Additionally, the offense must occur in a public place. A shopping mall parking lot is not a public place, even if it has traffic control devices and street names.

2. Inability to “Wheel the Defendant”

This defense, which is related to the previous one, comes up often in DWI collision cases. Typically, by the time police arrive, the defendant has exited the vehicle.

Unless another witness saw the defendant behind the wheel in the moments before the crash, the prosecutor may have no case. Circumstantial evidence may be available as well. For example, a witness might have seen that there was only one person in the car, or the defendant may have admitted driving the vehicle.

3. Improper Stop

DWI checkpoints are illegal in Texas so all stops must involve reasonable suspicion.

Typically, a traffic violation serves as reasonable suspicion and most people cannot go more than a few blocks without breaking at least one traffic law.

Even a ticky-tack violation, like travelling 1mph over the speed limit, probably suffices for reasonable suspicion. However, sometimes officers pull over motorists because they don’t look or act right.

Such stops are illegal, and so are the arrests that follow.

4. Improper Arrest

A much higher evidentiary standard applies with improper arrest.

police cars pulling over a person driving while intoxicatedPolice cannot arrest individuals unless they have probable cause to do so. That’s one step short of beyond a reasonable doubt.

Normally, police officers say that defendants failed the field sobriety tests (more on that below), but sometimes, defendants refuse to perform these tests, which is their right.

Other times, officers get in a hurry and skip this part of the arrest procedure.

5. Poor Chemical Test Protocol

Police officer technicians talk about the Breathalyzer like it’s the most sophisticated invention in history, but it’s actually a delicate machine that’s prone to error.

For example, if the defendant burps or belches in the fifteen minutes prior to the test, the mouth alcohol skews the test result. Most officers either don’t wait fifteen minutes or don’t watch the defendant the whole time.

Blood tests are much more reliable, but there are issues here as well. Officers must have valid search warrants to draw blood and an issue with the warrant, such as a lack of probable cause, could legally invalidate the test.

6. Invalid FST Results

This defense may be the best one. The field sobriety tests either provide probable cause for the arrest or, if the defendant refuses to provide a chemical sample, evidence of intoxication at trial.

There are some unapproved tests, like the Romberg balance test, which may only be admissible for limited purposes. The three approved tests are:

  • Horizontal Gaze Nystagmus: This condition, which many people have, is also known as “lazy eye.” Alcohol intoxication is not the only cause of nystagmus. In fact, it’s not even the leading cause. Childhood brain injuries and genetic issue cause more nystagmus cases than alcohol.
  • Walk and Turn: Environmental conditions often skew this test result, which is also known as the walking-a-straight-line test. Whether they are drunk or sober, most people cannot walk a straight line in boots or flip-flops. Most people also cannot walk an imaginary line in the dark.
  • One Leg Stand: Police officers often say the defendant “failed” this test based on a technicality, like holding the leg up at slightly the wrong angle. But the Harris County jury must look at the test footage and determine who passed and who failed. Their conclusion is the only one that counts.

As a rule of thumb, the DWI conviction rate is about 90 percent in chemical test cases, 60 percent in chemical test refusal cases (FSTs only), and 30 percent in complete refusal cases.

7. Invalid Chemical Test Results

We go from perhaps the strongest DWI defense to perhaps the weakest DWI defense.

Woman taking a breathalyzer test in a carChemical test results are difficult, but not impossible, to challenge. Breathalyzers measure breath alcohol level and use that figure to estimate blood alcohol content.

That extra step makes the Breathalyzer vulnerable to flaws like the aforementioned mouth alcohol, as well as a failure to account for elevated acetone levels.

Blood tests are even harder to discredit, but the sample is preserved for trial, and a retest at an independent lab sometimes yields different results than the ones police technicians obtained.

Connect with an Aggressive Criminal Defense Lawyer

If you were charged with a DWI, you have a number of legal options. For a free consultation with an experienced criminal defense attorney in Houston, contact the Law Office of Jim Medley.

We routinely handle matters in Harris County and nearby jurisdictions.

Written by

Jim Medley

For more than 20 years, attorney Jim Medley has perfected his craft in the field of criminal justice. He garnered extensive knowledge during his 12 years as a police officer in Texas, and applied that knowledge during his time as a professor of criminal law and criminal justice. Mr. Medley brings a unique skill set to the table, and as a result, he would be an invaluable asset in the courtroom should you need DWI or criminal defense in Houston.

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