A DWI conviction requires key elements are proven beyond a reasonable doubt. As a result, if the evidence is weak or the prosecutor is unable to prove these elements, the Court will dismiss the charges.
What Does the Prosecutor Have to Prove for a Guilty DWI Verdict?
According to Texas Penal Code 49.04, the District Attorney must be able to prove two things:
- The accused was under the influence of drugs or alcohol at the time of driving.
- The defendant had a BAC of 0.08 percent or higher at the time of driving.
Proving the Defendant Was Driving
In many cases, the arresting officer will personally observe the defendant driving a vehicle. However, in some cases the officer may not actually see the defendant drive a vehicle. As a result, the prosecution must be able to prove driving by some other means. This is often the case in DUI collisions where the officer was not present when the collision occurred. For instance, the prosecution may rely on witness statements to prove that the defendant was driving or the defendant’s own admission that he or she was driving the vehicle.
In other cases there may be no witnesses or admissions. Consequently, the prosecution may try to prove that a defendant was driving by using circumstantial evidence. This can include:
- The position of alleged driver in the vehicle.
- The lack of other possible drivers.
- Other factors that tend to show the defendant was the driver.
Proving The Defendant Was Under The Influence At The Time Of Driving
The prosecution must be able to prove that the defendant was under the influence or had a BAC of 0.08 percent or higher at the time of driving. To do this, the prosecution will rely on the results of the breath or blood test. Drivers must be observed prior to testing to ensure they do not do anything that creates higher BAC results.
The prosecution may have to provide expert testimony regarding retrograde extrapolation to explain how the results of a test taken after the time of driving can accurately show the defendant’s BAC when driving occurred. The defense can also present expert witnesses who may be able to show why the defendant’s BAC at the time of driving was under 0.08 percent and subsequent test results reflected a rising blood alcohol level.
If the defendant refused testing, the prosecution would have to prove he or she was under the influence with other evidence. This may include:
- Evidence of driving conduct.
- Performance on field sobriety tests.
Avoid a Guilty DWI Verdict, Call Clyde Burleson
In conclusion, if arrested for a DWI, call Clyde W. Burleson, P.C. at 713-628-1503 for a free consultation.