What a DWI Defense Must Include
A properly formed DWI defense stands between you and the penalties and consequences associated with a DWI conviction. From understanding the importance in requesting an ALR Hearing to winning your Administrative License Revocation Hearing to knowing how tests to determine a DWI arrest are conducted, your defense must include a number of vital considerations for you to have the best chance to emerge victorious.
Some of these elements are important in every case and others need to be emphasized because of individual circumstances. The DWI legal process is complicated. Every case is different. Police often make mistakes with either the traffic stop or their ability to follow standardized field sobriety test protocols. You have rights when stopped for a DWI.
Every case requires a unique blend of defense positions and having a lawyer who is prepared for all these circumstances is a necessity.
A DWI Defense Must Know The Importance of the Administrative License Revocation Hearing (ALR) & The Opportunities It Provides.
A common mistake made by many lawyers is failing to request an Administrative License Revocation Hearing. Many believe these hearings are not worth contesting because they think these hearings are very difficult to win.
That is simply not the case. ALR Hearings can often be won based on technical defenses, such as:
- The breathalyzer sample was not properly taken.
- The arresting officer filled out his probable cause declaration improperly.
- You burped and the officer did not start the observation period over.
- You had something in your mouth, such as chewing tobacco.
- You have diabetes (or additional acetones common for a number of reasons, including the keto diet)
- You have dentures.
- You work with solvents.
If your lawyer does not request a Administrative License Revocation Hearing (ALR) within 15 days of your arrest to fight to keep your license, they are doing you a grave disservice.
Your attorney must have a sound knowledge of the breath test rules and know how to conduct an investigation to discover whether or not the rules were followed.
Texas has very specific rules and regulations concerning the breath tests given to people suspected of DWI. It is absolutely critical for your defense to know if the rules were followed. Knowing opens the possibility of attacking the results on the grounds that the technical rules weren’t obeyed.
Through conversations with other attorneys, I’ve discovered that far too many lawyers don’t read the statute and regulations covering breath testing. Those who don’t know the regulations don’t realize that violations of the rules introduced into evidence can show that the results are unreliable. Further, showing this can be used to exclude the breath test results altogether.
For example, did you know that the testing officer is supposed to watch you for 20 minutes before giving the test to make sure you don’t hiccup, burp, or puke—because these things can totally skew the test results. A number of courts have excluded test results for this violation, even though the accused may not have actually hiccupped, burped or vomited.
In fact, a host of criteria must be met or the test results will often be thrown out.
- The test operator having a current certification
- The machine having a current certification
- Calibrating the machine as often as required
- Changing the mouthpiece before the test is given
- Keeping a record of the temperature of the calibrating solutions in the machine
- Keeping a log of the tests run
- Counting the number of times the calibration solution has been changed
- Having a significant time lapse between being stopped and when the BAC test was administered? (Rising BAC)
Thus, to defend you properly, a lawyer must obtain copies of the various logs, maintenance records, and the operator’s license or certification. In many ways, the ALR hearing can be the most important thing you do as part of your defense.
A DWI Defense Must Consider Filing a Motion to Suppress
A Motion to Suppress is a document asking the Court to determine whether or not certain evidence is admissible against you. If key evidence against you is thrown out of Court, the District Attorney’s Office may have no choice but to dismiss the case.
Examples where a Motion to Suppress may prevail include:
- Cases where the police officer did not have probable cause to stop you.
- Improperly administered Field Sobriety Tests or breath tests.
- Instances where Miranda rights were not read or understood.
A DWI Defense Must Understand the Rules Governing Field Sobriety Tests
It is essential that an attorney representing someone charged with DWI understands both the theory and the correct practice of the Field Sobriety Tests. The National Highway and Traffic Safety Administration (NHTSA) published guidelines that the police must follow when they perform a Field Sobriety Test. The rules are specific and crucial to your case. Knowledge of the rules will allow you to see if the arresting officer completely followed the manual’s directions. This can be powerful evidence, frequently overlooked by defense lawyers.
If the manual’s directions weren’t completely followed, the test’s validity can be attacked. In my practice as both a prosecutor and a defense attorney, I’ve found that in an extremely large number of cases, the police do things inconsistent with the manual’s material. And, as discussed earlier, improper procedures may lead to the granting of a Motion to Suppress and the removal of evidence against you.
A DWI Defense Must Include a Clear Understanding of the True Costs of a DWI
Your attorney needs to carefully explain the penalties you are facing. If convicted, you may be sentenced not only to probation and/or jail time, but also administrative sanctions that can result in the suspension of your license. In addition, you may be left with an inability to rent a car, substantially higher insurance rates, and loss of your job, particularly if your job involves driving or your company has a zero-tolerance policy.