DWI Case Tips
How to preserve your right to drive:
- The arresting officer should have provided you with a notice of suspension of your license.
- You have 15 days from the date the notice was served to request a hearing to contest the suspension or your license will be AUTOMATICALLY SUSPENDED.
- You may be eligible for an occupational license.
What facts must be proved beyond a reasonable doubt before you can be convicted of a DWI?
- You operated a motor vehicle;
- In a public place in the state of Texas;
- On the date you were arrested;
- While you were intoxicated.
If you are not behind the wheel when the police show up KEEP YOU MOUTH SHUT.
What “Intoxicated” in the State of Texas means:
- Your blood alcohol level was over the legal Texas limit; OR
- You did NOT have the normal use of your mental or physical faculties; WHILE you were operating a motor vehicle.
The field test can be difficult even if you are not drinking. If you have a medical reason that will prevent you from performing well on the test make sure you tell the police and do not attempt the field test. It may be in your best interest not to take the stand in trial but the video most likely will be played to the jury.
7 things the State Prosecutors may NOT tell you but MUST tell a Defense Attorney:
- The State can’t produce all the witnesses necessary to find you guilty at trial.
- The State has exculpatory evidence which may prove your innocence.
- The State has problems with its evidence and may not be able to prove your blood alcohol level should the case proceed to trial.
- The State Prosecutor has a weak case and does not want you to set your case for trial.
- The State Prosecutor wants to dismiss your case but his boss will not let him.
- The State is bluffing about the strength of the State’s case hoping you will not hire an attorney and plead guilty. Questions that are crucial to your defense and that your attorney must ask.
- The State has lost the video or it is damaged.
I have been surprised on several occasions when my client informed me that they never viewed their video on a previous DWI.
Always view your video. I was able to get one DWI dismissed for my client because the police followed him for two miles before they pulled him over. My client had failed the breath test and admitted to smoking POT. The police report said my client ran a red light but the video did not show any traffic violations. The case was won on a technicality. On other DWI’s the video was lost or damaged which helped get the case reduced or dismissed.
What you were doing the day of your arrest.
- How much and what type of alcohol you may have consumed including when you had your first and last drink.
- What food, if any, you consumed prior to your arrest and at what time.
- Your observations of the officer.
- The officer’s stated reasons for stopping you.
- Whether the officer asked or ordered you to take roadside tests.
- How you believe you performed on the roadside tests.
- What statements you made to the officer.
- What the results were of any breath or blood tests.
- Whether there were witnesses to your arrest.
- Whether you were observed prior to a breath test.
- Did the officer promise you anything or threaten you in any way to persuade you to take a breath test.
Remember to exercise your rights when on the video. When the police tell you that you have a right to an attorney ask for an attorney and from that point on keep your mouth shut. You have a right to remain silent.
What is the foundation of any good defense?
- Hiring an attorney who specializes in DWI defense and is knowledgeable in the area of Texas DWI law.
- A thorough review of all police reports and any videos.
- A vigorous cross-examination of the arresting officer(s).
- experts on some cases
Many times in trial a police officer does not hold up well to cross examination. A jury may not like the police officer. I had a young girl arrested for DWI. The police officer did not do well on cross examination. The jury found her not guilty and informed me that they were turning the police officer in to internal affairs. One of the jurors had a relative that was a police officer and was applauded by the arresting police officers conduct.
Preliminary motions that may end the State’s case against you prior to a trial:
- A Motion to Suppress Evidence on the ground that you were unconstitutionally stopped searched or seized.
- A Motion to Quash the Information or Indictment due to an error in the charging document.
- Motion to Suppress Breath/Blood Test Result due to Illegal Coercion.
- Motion for Discovery of Exculpatory Evidence.
- Motion for Discovery of all evidence.
If these motions are not filed, your case may not be dismissed when it should have been or you may not be told about evidence which would prove your innocence.
Other Pre-Trial DWI defenses that may be available:
- Contest the constitutionality of the stop.
- Contest the constitutionality of the administration of roadside tests.
- Contest the constitutionality of the probable cause to arrest.
- Contest the constitutionality of the Miranda rights.
- Contest the manner in which roadside tests were given.
- Contest the use of any blood or breath test.
- Contest the constitutionality of any search and seizure.
Why a jury trial is advisable:
The police and prosecuting attorney already think you are guilty. But, before you can be found guilty, six people have to agree on your guilt in a misdemeanor DWI, twelve in a felony DWI. In Harris County always ask for a jury trial.
How can you get a jury trial?
You automatically have a right to a jury trial.
How an officer’s testimony can be discredited:
- By the officer failing to recollect facts of your case.
- Showing the officer’s testimony is inconsistent with his police report, prior testimony or the video.
- Showing that one officer’s testimony or report is inconsistent with another officer’s testimony or report.
- Showing that the officer failed to conduct sobriety test in the proper manner.
- By showing that the officer is not properly certified in sobriety testing or has failed to complete mandatory refresher courses in sobriety testing.
One of my favorite DWI trials was when the police officer admitted on stand that he had a video of the probable cause stop that he had not submitted as evidence. The jury found my client not guilt. It was my client second DWI so he was very happy.
Chemical and/or roadside tests may NOT be valid unless:
- The officer proves he had a reasonable suspicion that you were violating the law.
- The officer proves that you voluntarily consented to performing roadside tests.
- The officer informed you, in writing, of your rights concerning a breath or blood test.
- The officer proves he had probable cause before he arrests you BEFORE he requires you to take a blood or breath test.
- The officer properly read you your Miranda rights after you were arrested and before he interrogates you concerning your arrest.
What a good attorney should do before you make a decision to go to trial:
- Review all police reports and videos associated with your DWI case.
- Inform you of the strength and weaknesses of your DWI case.
- Estimate the likelihood of winning your case after a trial. this is difficult
- Discuss the pros and cons of taking your case to trial.
- Discuss the effects of a DWI conviction.
- You may be eligible for pre trial diversion.
If you are charged with a felony DWI you may be able to present the case to a grand jury. I had a 40 year old lady charged with a felony DWI. My client got stuck on the metro rail and was one of the many accidents. My client actually called me from the video room. The police officer never expected me to answer my phone at 2am in the morning. I did answer my phone and was able to help my client keep her mouth shut and exercise her rights. The grand jury no billed my client’s felony DWI. We were both very happy.
Call Penny Wymyczak White 24/7 281-733-0264