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Originally Posted On: https://sbrownlawyer.com/2020/07/23/what-is-the-best-dwi-defense-a-look-at-the-different-scenarios/

 

HAVING A GOOD DWI DEFENSE LARGELY DEPENDS ON THE TYPES OF REPRESENTATION YOU HIRE. HERE ARE SOME OF THE WAYS AN ATTORNEY IS WORTH THE MONEY.

Do you know that in Texas you do not have to be driving a vehicle to be arrested for Driving While Intoxicated (DWI)?

Operating a vehicle is loosely defined. The legal interpretation means when the police have reason to believe you have enabled a vehicle for use. This may be the reason for the increasing DWI arrests in Houston and why you need a solid DWI defense. plan.

In the first six months of 2019, Houston had a 75% increase in arrests, with a total of 3,862 people arrested. That number continued to increase at a rapid rate. According to the Harris County District Attorney’s Office, by October 9, 2019, there had been 12,127 DWI arrests in the county.

The impact of a DWI or DUI (Driving Under the Influence) charge can affect you for a lifetime.  You need a DWI defense attorney who understands the legal process of fighting alcohol-related offenses.

Let’s take a look at some of the defense strategies an attorney may use to reduce or eliminate your DWI charge.

DWI Defense Strategies

You failed sobriety testing and your BAC over the legal limit. Don’t give up, an attorney with a solid track record for defending DWI and DUI cases will look at your case to see if there are legal flaws.

If evidence has been improperly obtained, your DWI defense attorney will file a motion to have the evidence suppressed or thrown out. If the judge agrees with the claims made in the motion, the prosecutor will not be able to use that evidence. Without sufficient evidence, the prosecutor may not be able to prove their case and will dismiss charges.

To obtain a conviction in Texas the prosecution must prove:

1. Intoxication

2. The intoxication was in a public place

3. You were operating a motor vehicle

Operating means the police had reason to believe you were able to drive the vehicle. The reason can be due to a variety of factors, including you admit to driving the car. A witness may have said you were the driver, or you may have been in the driver’s seat with the keys in the ignition.

Here are some things your attorney may use in your defense for driving while intoxicated.

No Probable Cause

In order to pull you over the police need probable cause. That means they cannot stop you just because they saw you pull out of a bar parking lot at 1:00 am.

You have to actually do something that justifies the officer pulling you over. This means something the officer can see, like speeding, weaving on the road, straddling lanes, or running a red light.

The officer must have probable cause to assume you were driving drunk and arrest you. Slurring speech as the officer talks with you, or the car smelling like alcohol can be probable cause.

A failed field sobriety test, or stumbling as you walk or stand can be other indicators. These observations will normally satisfy a judge that there was probable cause for the arrest.

Most police cars have dashcam videos which are a way they justify a traffic stop. They are also helpful for invalidating the stop and charges are justified.

Your DWI defense attorney will request a copy of that video as part of the discovery process. This allows both of you to view your behavior and sobriety test performance.

Challenge Field Sobriety Tests

The accuracy of a field sobriety test can be questionable. The results may be negatively impacted by weather, the ground where the officer gave the test, a person’s physical ability or disability, anxiety, and fatigue.

The field sobriety test is a total of three separate tests used during a traffic stop to determine a person’s impairment. The tests were developed in the 1970s and have been scientifically validated as admissible in court. The accuracy can be challenged in court.

According to the Field Sobriety Tests Organization, the tests show different rates of accuracy. The horizontal gaze nystagmus test has a 77% accuracy rate. The one-leg stand test is 65% accurate, and the walk and turn test has a 68% accuracy rate.

Even though the combined accuracy of the three tests when given together has an 82% accuracy rate, three is still room for speculation.

Causes of False Breathalyzer Results

It is possible to get a false breathalyzer test result because of causes other than alcohol. This happens because the machine only provides an estimate of alcohol. Acetone on your breath can result in a false reading.

The average person has some natural acetone on their breath. Persons with diabetes have can register a false positive as high as 06. Fasting can also increase the acetone level to give a false .06 reading.

A person appearing shaky, dizzy, clumsy, confused, or unable to pay attention may be symptoms of hypoglycemia. Hypoglycemia can be caused by overexertion, anxiety, taking aspirin in high doses, sulfa medications, drinking diet soda, and health conditions such as liver disease, kidney disease, and cardiac problems.

Other factors such as a low-carbohydrate diet can increase the acetone levels in the body. Breathalyzer machines measure acetone as alcohol, giving a false positive.

Challenge Accuracy of Blood Test Results

Understanding blood test results and mitigating factors are important to a strong DWI defense.  Your attorney may need to use expert medical or forensic chemical witnesses. These witnesses will professionally challenge the accuracy of the test results.

Things that might affect the accuracy of test results include:

1. Whether consumed food or beverages a short time before testing

2. Whether you took medication before testing, resulting in a false positive

3. If testing took place during the absorption phase

The absorption phase is the time of 45 minutes to 3 hours. That is how long it takes for the body to fully absorb alcohol. This is important because if you have the popular “one for the road” you may not have been legally impaired at the time of the traffic stop.

By the time the blood draw took place at either a police station or hospital, an hour or more has usually gone by since the time of the stop. This means your body would have absorbed more of the alcohol and have a higher BAC reading than at the time the police pulled you over.

It is also possible that you may not have been visibly intoxicated, but if the blood tests reveal drugs in your system you may be charged.  There may be a legitimate reason for narcotics to be in your blood, such as a prescription drug you are taking.

Your own personal doctor may need to testify on your behalf if that drug does not have the same effects on your body that it does others.  For instance, a normal side effect is the inability to operate a motor vehicle, but your prescription and dosage, combined with the time you have taken the drug, has shown those side effects do not apply to you.

Challenge Officer’s Observations

The court and jury generally accept the police officer’s notes regarding your behavior as fact. This is especially true if there is a dashcam or body cam to support their reports.

People who observed your behavior at the time of arrest may serve as witnesses if what they saw is different from the officer’s observations. The prosecutor will challenge witnesses as having bias if they were in the vehicle with you.

There may be valid explanations for the behavior the officer used to validate an arrest. This can include bloodshot eyes due to allergies, fatigue from working long hours, or inability to perform field tests with stability due to physical disabilities.

No Miranda Warning

Police normally issue a Miranda warning prior to questioning anyone in police custody. If you were not Mirandized and made an incriminating statement, that statement may be inadmissible in court.

It is important to realize that if you receive a Miranda warning and continue to talk voluntarily, the prosecution will use anything you say to prove their case.

How to Get Out of a DWI Charge

Whether your charges are a DWI or a DUI, the Texas Penal Code, Title 10, Chapter 49, governs all charges involving intoxication. This means you will have both criminal charges in court, and also administrative hearings at the Department of Motor Vehicles regarding the suspension of your driver’s license.

The best defense for driving while intoxicated is hiring a DWI attorney. They will analyze all the evidence the prosecution plans to use in court. The attorney will work to have all charges reduced or dismissed.

The law offices of Scott M. Brown & Associates serve clients throughout the Houston area. They have a proven record of “not guilty” verdicts for DWI charges and will work hard to provide you the best DWI defense.

Call (979) 849-8525 to schedule a consultation or contact us online. We are happy to answer any questions you have.