When someone is charged with a crime, they are absolutely entitled to put on a defense. Some defenses are better than others in any given case. Having a generalized defense where the attorney challenges everything is sometimes referred to as throwing spaghetti on the wall. This is not effective. Jurors do not tend to believe in a defense lawyer who challenges everything in a given DWI case. Furthermore, this is exhausting not just for the jurors who have long since tuned out by closing arguments, but for everyone, including the judge. When the judge gets exhausted with a defense lawyer, it does not look good either. How the defense lawyer looks in the eyes of the jury can be very important, especially in close cases. Many cases that go to trial are close, and in these cases any little thing can push a verdict to not guilty or to guilty. And this obviously has huge ramifications for the client. Sometimes there does not seem like there is anything to challenge, but there is always a defense to be presented, even if the defense is “I didn’t do it.” The right to put on a criminal defense is a fundamental constitutional principle. It is an essential right that has its roots in the Due Process Clause, the Confrontation Clause, and the Right to Compulsory Process of the Bill of Rights of the United States Constitution.

DWI Defense in Texas

The Defense Must Fit the Case

The defense must fit the case to be effective. As noted above, if it is not fitted to the case, it will not work. A good defense should be like a tailored suit, customized for the case. If this is done well, it will be compelling. If the defense is tailored to the case, it has a far better chance to be effective, and to get the not guilty verdict both the lawyer and the client desire. It will not be focused enough or specific enough. It will not be effective, and the jury will not get on board. The simplest defense is often the default defense of “I didn’t do it.” This can be an effective defense, of course. Sometimes. Many people have heard the presiding juror say the words “not guilty” when their lawyer uses this strategy. However, if a defense is going to work in any given case, it must arise naturally from the case. That is, it cannot strike a juror that the defense lawyer is throwing spaghetti at the wall. Jurors will see through this and they will tune out. This page discusses various defenses to DWI charges. While some aspects will show up over and over across many cases, the smart defense to a DWI case is uniquely crafted to the case. That means you need to call me and we need to go over your case to know how to build your defense that is tailored to your case.

What Is an Affirmative Defense?

The Texas Penal Code lists several affirmative defenses that can be asserted in the right circumstances.[i] An affirmative defense admits some or all of the criminal allegation, but presents facts or circumstances that justify the crime. There are statutory defenses authorized by law. Examples of affirmative defenses are duress, mistake of fact, or insanity. It is unlikely that insanity would arise as an affirmative defense to DWI. However, insanity defenses don’t arise that often in general, and I’ve learned to never rule anything out.

Most of the defenses that arise in DWI cases are not affirmative defenses. In most DWI cases, the defenses do not admit the underlying conduct. Many of the defenses in DWI cases attack the reliability of the blood test or the breath test or the dependability of the field sobriety tests. Defenses to DWI charges often revolve around reasonable doubt and how the evidence brought forth by the state is insufficient to support a conviction. The defendant does not have to prove anything. The defense does not have to put on any evidence. The state has the burden of proof. The state has to prove its case, and if this case can be attacked successfully, that is all it takes to get to Not Guilty.

What is a Reasonable Doubt Defense?

This defense will attack several aspects, or one aspect, of a state’s case, and argue that the state has not provided enough proof to convict. Beyond a reasonable doubt is the standard of proof in criminal cases, and it is a high standard. There is no legal definition, but it is the most demanding standard in the legal system. While there is no legal definition, the dictionary definition, at its essence, means doubt based on reason. Reasonable doubt is about logic, and not about size. During jury selection, I illustrate this point by discussing Tylenol with the jurors. I ask them if in this bottle of 100 Tylenol capsules, there is a chance that one capsule in this bottle could be laced with arsenic, would they be comfortable giving a Tylenol from the bottle to a family member? The answer will be a hard and firm "no" for all prospective jurors. Then, the bottle size is hypothetically increased. What if they bottle had 1,000 pills, and there was a chance that one is laced with arsenic? What if the bottle had 10,000 pills? This example, taken from David Ball's book on Criminal Defense, teaches the idea of reasonable doubt to jurors very well. The reasonable doubt that one pill will not be safe does not disappear despite the fact that the chance is very small. If In DWI cases, the state must prove every element of DWI beyond a reasonable doubt.[ii] At the time the traffic stop is made, the standard is different. The standard is lower. For law enforcement, the standard of proof needed by a police officer to arrest someone for DWI is probable cause. To have probable cause, a police officer needs to show is that more likely than not a crime has been committed. In closing arguments, I remind the jurors that the standards are different, and that their standard to convict is much higher than the police officer’s standard to arrest. This is a great way to defend a DWI without undermining the integrity of the police. Many jurors believe in police officers, and get turned off by defense attorneys who attack and undermine the police. It is crucial to be conscious of this. Always know your audience. Of course, for reasonable doubt to be an effective defense, it must be tied to the facts.

Bloodshot Eyes? Slurred Speech? Odor of Alcohol?

In a police report, there are three things that can be counted on in almost every DWI report: bloodshot eyes and odor of alcohol and slurred speech. These three signs appear so often in my cases that I’m surprised when they are not there. So what do these things mean? How can they be explained? How can they be accounted for? A person could have red because they are tired, because of cigarette smoke, because of wind, because of allergies or other irritants have caused them to rub and itch their eyes. What does it mean to slur speech? The police officer will admit that he or she has not met the defendant before, and has no idea how the defendant usually speaks. For odor of alcohol, the police officer will have to admit that drinking alcohol and driving is not illegal. Once again, although the police officer may have probable cause to arrest, there may not be evidence beyond a reasonable doubt to convict. It doesn’t work in every DWI case. It must fit. This can be a powerful defense, but the defense lawyer must powerfully weave the narrative.

What is the Presumption of Innocence?

The presumption of innocence requires that jurors presume the defendant is innocent until evidence closes. The presumption of innocence is a cornerstone of the American criminal justice system. Although the Constitution does not specifically address the presumption of innocence, it has been tied to the right to due process and incorporated into the fifth, sixth, and fourteenth amendments. It is a big deal. It is something that I talk about quite a bit in jury selection. It must be addressed, because even though it is a simple concept, it can be hard to understand. Jurors are people, and people don’t always really know how to withhold judgment until the end. We jump to conclusions all the time. It would be exhausting not to. Jurors will form their own opinions as the case progresses. This is the way we all think and feel and process information. So, how do jurors put this aside and withhold judgment?

During jury selection, I will find a juror who has young children and asks them this question: if they are relaxing at home, and hear something break it the other room, and walk into that room, and see their young child next to a broken lamp, do they presume their children innocent, or do they presume them guilty? Most of the time, the juror will smile or laugh because this is an absurd question. This is a simple everyday example that shows the jury how difficult the presumption of innocence can be, and how hard it is to sit in judgment and withhold judgment. My goal is to make sure that the jurors know who must prove the everything in the case: the government. And my other goal is to make sure that the jurors know who doesn’t have to prove anything: the defense.

What is an Alibi Defense?

An alibi defense is not an affirmative defense like self-defense or insanity. This is because an alibi defense does not own up to the offense. An alibi defense excludes the defendant as the person who committed the crime. Imagine this scenario: a bank robbery occurs and you are arrested as a suspect, but you were in Fort Lauderdale on the day the bank was robbed and you produce a flight and hotel receipts as Facebook photos that show you eating in a Fort Lauderdale restaurant. This would be a great alibi defense. Generally, alibi defenses don’t come up very often in DWI cases, although they come up sometimes. I have defended a case in which the defendant was intoxicated, but was not driving. He was sitting in a parked car on the side of the road with the engine running, and we got the case dismissed. His alibi was that he was riding in the passenger’s seat, not the driver’s seat.

Is Intoxication a Defense to DWI?

Intoxication is listed in defenses in Section 8.04 of the Texas Penal Code. There are two kinds of intoxication. There is voluntary intoxication and involuntary intoxication, and neither are defenses to a DWI charge. There are many other substances that can lead to an arrest for DWI, not just alcohol. Some controlled substances that are illegal and are deemed to have no medical value (such as, cocaine, heroin, or methamphetamine) can lead to a DWI. Other controlled substances that are deemed to have medical value (such as, prescription drugs like alprazolam) can also lead to a DWI. However, entitlement to use prescription drugs is not a defense. That means that is not a defense to intoxication if you have a prescription, and you are taking the prescribed amount (of benzodiazepines, for example). The state can and will argue that you’ve lost the normal use of your physical and mental faculties.[iii] For the language from the statute, please see Section 8.04 of the Texas Penal Code.

Voluntary intoxication is not a defense to DWI, and it would be absurd if it were. Almost everyone charged would claim this as a defense. Furthermore, involuntary intoxication is also not a defense based on appellate case law.[v] However, the Texas Penal Code requires that a person—in order to be convicted of an offense—must voluntarily engage in conduct.[vi] How this arises in a DWI case is the defense of automatism—which is akin to sleepwalking. To raise automatism, the defense must show some evidence beyond speculation that he or she was drugged. There must be evidence of an independent event by a third party. The defendant must also admit to engaging in the underlying conduct, but must show no independent judgment.[vii] Automatism can come up in cases involving Ambien, however taking Ambien voluntarily is not a defense. The defense of automatism comes up in situations such as when someone’s drink is drugged by something like GHB[viii] and then operated a vehicle.

What is the Disconnect Defense?

The disconnect defense comes up often in DWI cases when there is a conflict in the evidence. The disconnect defense can come into play when the client has a high blood or breath score, and looks good on the video doing the field sobriety tests. Ironically, it can sometimes help the defense if there is a blood or breath score well-above the legal limit. In this scenario, it does not matter how high the blood or breath score might be. In fact, if it is quite high (more than double the legal limit), that can be even better. The high blood score or high breath score is then attacked to undermine its reliability. There are many ways in which the machine—whether it is a gas chromatogram or the Intoxilyzer—can go awry, and those ways are pointed out to the jury. When the blood or breath score is very high, the analyst testifying for the state will extrapolate that the client had well over a dozen drinks. The defense will dwell on the fact that this score defies logic. The jurors have seen people this drunk, and the defendant did not look that drunk on the video. The reason why this defense can succeed is that jurors can understand how machines can break. Machines break down so often that it is not remarkable or shocking when they do. People live in a world in which computers and phones break down routinely and must be replaced or fixed. Clocks break down and thermometers and scales can be counted on to give incorrect readings from time to time. This idea—the fallibility of machines—must be targeted and discussed in jury selection.

[i] Tex. Penal Code Chapter 8. General Defenses to Criminal Responsibility.

[ii] There are four elements to the charge: Operating a Motor Vehicle in a Public Place While Intoxicated.

[iii] Tex. Penal Code, Sec. 49.10

[iv] Tex. Penal Code, Sec. 8.04

[v] Brown v. State, 290 S.W.3d 247 (Tex.App.—Fort Worth, 2009, pet. ref’d)

[vi] Tex. Penal Code, Sec. 6.01(a)

[vii] Peavey v. State, 248 S.W.3d 455 (Tex. App.—Austin 2008, pet. ref’d)

[viii] Gamma-Hydroxybutyric Acid (GHB) is a central nervous system depressant and a controlled substance. It is commonly referred to as the date rape drug, but it is also taken voluntarily as a club drug and party drug.