This is the place where your DWI defense begins. If you have recently been arrested, you know how alarming and traumatic going to jail can be. If your family member was arrested, well you are probably worried sick about them. Either way, you need to get some answers to your questions. There are many different questions that need to be answered. Will you get any more time in jail? Will you lose your driver’s license, and if so for how long? How will this impact your job and your career? How will this impact your family? What if you took a breath test? What if you took a blood test? Will this affect other aspects of your life? There are many more questions that need to be answered, and the answers to these questions will be specific to your life, and your case. This is because there are as many ways to get a DWI. Every case is unique and must be defended in its own way. This page is more of a guidebook, and it contains a lot of general information and defense tactics and approaches. It will guide you through the entire Process, the Consequences, and perhaps most importantly, what kinds of Evidence they will need against you at a trial. If you have been arrested for DWI then you need answers. I would love to meet with you and your family and discuss your case. It doesn’t matter if this is your first DWI, if you are charged with a misdemeanor or a felony drinking and driving, you need to contact me so we can discuss your case and your defense.
What is the DWI Law in Texas?
DWI law is located in Chapter 49 of the Texas Penal Code. The crime of DWI has four elements to it, and all the elements need to be satisfied by the state to secure a conviction. These four elements are:
- A Motor Vehicle
- In a Public Place
- While Intoxicated
Which elements are contested in a DWI case? All these elements can be contested in any given driving while intoxicated case, but generally there are only one or two elements that are at issue. Usually, intoxication—whether the person driving was legally intoxicated—is the most important and most contested element in every single case, although sometimes this is not always true. Sometimes, intoxication is not questioned by the defense lawyer, if challenging it does not fit the defense’s case, although this is unusual. When this occurs, the issue in the case is operating. If law enforcement does not see the person driving and the person does not admit to driving, operating can be the major issue in the case. If the defense is that the person was not operating, it sometimes does not make sense to also challenge intoxication. If both are challenged, this can confuse and fatigue the jury. The result will be that the defense will not be as sharp. Also, if everything is challenged by a defense lawyer, the jury grows leery of the defense "throwing spaghetti on the wall." This will result in the defense lawyer losing credibility. The other issues, motor vehicle and public place, become issues far less often. Regardless of what element or element are at issue in a given DWI case, the state must prove all four beyond a reasonable doubt. If the defense can stir up reasonable doubt on one of them, this can be enough for a not guilty verdict.
The Defense Must Be Specific to Your Case
A defense lawyer doesn’t necessarily challenge every aspect of the case that can be challenged. When something is specifically not challenged, like intoxication, this is done for strategy. Most of the time, intoxication plays a key role in the defense strategy, but not always. When the defense creates a theory of the case that does not dispute intoxication, it is usually because “operating” is a contested element in the case. The other elements, “public place” and “motor vehicle” rarely come up, although they do sometimes. As mentioned above, the issue of operating does arise on a somewhat regular basis. The concept of operation does include driving, but operating is a broader concept than driving. The cases that challenge operating generally look like this: a person is asleep with their car parked, either with the engine running or the engine not running. This is a defense that can succeed, if it is the right case. Regardless of the facts of you case, the defense needs to take shape from those facts.
Your Strategy Should be Built from the Outset
A good defense lawyer will develop a strategy and a theory of the case from the outset, and challenge everything that must be challenged to argue that theory to the jury. Challenging everything in every case is throwing spaghetti at the wall and seeing what sticks. When defense lawyers do this it can look like deception to juries, and this is never a good thing. If you deceive a jury, the jury loses trust in the defense lawyer and this is a recipe for losing the case. There must be a well-honed defense, while at the same time not confusing the jury or coming off as disingenuous to the jury.
When I first meet with prospective clients in a DWI case, we talk about how the case might go based on the information we have. Once we receive all the evidence from the prosecutor’s office, I will build your file and we will analyze everything. This will almost always consist of police reports, statements of witnesses, and videos of you performing the field sobriety tests. If you would like to, we can sit down and watch the video together. I want the both of us to be on the same page regarding your defense, what the goals of the defense are, and what our plan is. If you call me and schedule a consultation, I will answer all the questions you may have. This is very important to my clients and it is very important to me. Let’s look at intoxication and what that can mean in a jury trial.
What is Intoxication?
In Texas, intoxication is defined by Chapter 49 of the Texas Penal Code and has three different meanings:
- Loss of normal use of the physical faculties
- Loss of normal use of mental faculties
- Blood alcohol concentration of above 0.08 grams per 100 milliliters
As noted above, intoxication is usually the contested element in any DWI trial across the state of Texas. State prosecutors only need to prove one of these three definitions of intoxication beyond a reasonable doubt, but they will usually try to prove all three of them. In cases in which there is not a chemical test, either a blood test or a breath test, the state is limited to challenging only loss of normal physical faculties, and loss of normal mental faculties. Cases that do not have a blood test or a breath test are rare, although they still do happen. Prosecutors will attempt to prove loss of normal use of physical or mental faculties by showing the video of the defendant performing the field sobriety tests, and by highlighting poor driving facts that led to the stop, if there are any. For instance, if you were pulled over for weaving or drifting, the state will argue that this shows loss of physical and mental faculties. The defense must counter this by showing making sure the jurors understand that the field sobriety tests can be difficult for anyone everyone, and that everyone is different, and everyone has different physical and mental abilities. This is something that all jurors know. Jurors know intuitively that everyone is different. What are normal physical faculties? What are normal mental faculties? What is normal for one person might not be normal for another person, but what is important is what is normal for whoever is on trial. This is a crucial point for the defense lawyer to make, and for the jury to understand. It is very important for the defense lawyer to begin reminding the jury of this early on in jury selection, and remind them again and again throughout the case. For any reasonable doubt case, this should be a central theme. A skilled DWI lawyer will not let the state get away with suggesting that everyone is the same. This is an essential tactic too humanizing both the person on trial as well as the defense lawyer.
What is the CSI Effect?
Because of how criminal justice is characterized on television, jurors expect to see flawless and clean scientific. On television, scientific evidence presented in courtrooms is tidy and perfect and wraps up within the hour. In reality, science is messy. This is because of the human element. For science to be admissible in Texas courtrooms, three factors must be satisfied: The underlying theory must be scientifically accepted and valid, the technique applying the theory must be acceptable and valid, and the technique must be applied in a valid and scientifically acceptable way. This third factor is always ripe for challenge because this is where the human element comes in, and humans are flawed beings who can be counted on to make mistakes. As explained below, the hallmark of science is being able to reproduce results. Reproduction is so important for accuracy and for validity. There is no trusting in science. Scientific data is about show me. But this is a fine point, and jurors do not know this. When jurors hear the word science or that something is scientific, they begin to trust the result as accurate and reliable by virtue of the fact that someone is testifying that it is accurate and reliable. This is something lawyers refer to as the “CSI effect.” If you don’t know, CSI stands for “Crime Scene Investigation,” and it is a very popular and long running tv show that shows prosecutors and forensic laboratory scientists meticulously and perfectly handling and presenting scientific evidence to juries. The scientific evidence, usually DNA or ballistics evidence, seals the case in the end, and proves beyond a shadow of a doubt the prosecution’s case. The CSI effect happens because of television crime shows like CSI. Laboratories performing forensic analysis for the government are not as sleek and sexy as they are presented on television, and there are several reasons for this.
How Do Real Crime Labs Differ from CSI Crime Labs?
CSI differs significantly from how real crime laboratories operate. These differences show up in many ways. One huge difference in how CSI differs from reality is money. The forensic testing on CSI and Law and Order appears to have limitless funds, but real-life labs do not. Forensic testing requires many safeguards and controls in every step along the way. Government laboratories do not always have the funds to put these safeguards in place, and there is pressure to get lab results to prosecutors so cases can be disposed. Another huge reason why CSI is not real is human error. Gas chromatography is a very reliable analytical method, but humans perform the test and at almost every point in the process is a point in which it can go wrong. From the time that blood gets taken out of a person’s arm, until the time it gets analyzed at the lab, there are many ways it can go wrong.
The blood must be drawn correctly, and it must be stored correctly. It must be prepared correctly. This means taking the blood out of the fridge, and transferring a very small amount to another vial. It means adding an internal standard to that vial in the correct proportions. It means arranging the vials in the gas chromatograph in the correct order so that no vial gets switched by mistake. It means doing these mind-numbing steps many times per week, and hundreds or thousands of times during the course of a year. These are just the errors that can arise in pre-analysis. There are many more mistakes that the machine itself can make in reading and quantifying and qualifying the test results. If any one thing goes wrong, the entire result is unreliable, and the defense can then show the jury how the result cannot be relied upon and cannot be trusted. Having a criminal defense attorney who can show this to the jury is the difference between a Guilty and a Not Guilty. Most criminal defense attorneys have not taken the effort to learn the science well enough to effectively cross examine the analyst and raise reasonable doubt.
How Do Criminal Defense Lawyers Challenge High Blood Tests?
“In God We Trust, All Others Bring Data”
Many people that I meet wonder how a blood or breath test that is above the legal limit can be challenged successfully. As discussed above, many jurors believe that a scientific result can simply be trusted. Believe me, jurors will trust the number of the test, if the defense lawyer doesn’t undermine it. But, a good defense lawyer will show a jury that there is no “trust me” in science. Scientific analysis is not just about showing the results, but it’s about showing the data behind the results. A proficient and skilled DWI defense attorney will subpoena many documents about how the blood was stored prior to the test, the machine on which the blood sample was tested, how that machine was calibrated, how the method testing the blood was analyzed, and many other items. When I subpoena documents about the blood test, I receive several hundred pages of data. If I know a case is going to trial, I spend several hours combing through the pages and looking for points of error.
How Do Criminal Defense Lawyers Challenge High Breath Tests?
For breath tests, there are also many areas that are ripe for defense challenge. The scientific technique behind breath testing is called infrared spectroscopy, and the machine that tests breath is called the Intoxilyzer 9000. The breath test actually tests blood, and it does so by analyzing the volatile chemicals that expel into your breath. There is a ratio that the machine uses to translate breath alcohol to blood alcohol, and that ratio is 2100:1. This number is called a partition ratio, and research has shown that the partition ratios in humans can vary, sometimes vary greatly. This machine assumes that everyone has the same partition ratio. If your partition ratio is higher, then the BAC result will show to be falsely higher. This is one of many aspects to the breath test that can be challenged and attacked. If you have taken a breath test, I have more articles on breath testing that dive deeper into all aspects of defense.
Important DWI Information
The DWI process can be alarming and overwhelming. I can answer all of the questions you might have, but here are some links related to your driver’s license, court information, and information about the ignition interlock device. Here are some links to helpful information about various aspects of a DWI charge:
Department of Public Safety
Tarrant County Courts