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What Must You Have in a Strong DWI Defense?


A common mistake made by many lawyers is failing to request a 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. License revocation 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.
  • You have dentures.
  • You work with solvents

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Moreover, by requesting a hearing and conducting discovery, you will have an opportunity to question the arresting officer and other key witnesses. You will also receive documents that the District Attorney’s Office will not let you have.

Your DWI Defense 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 Driving While Intoxicated. It is absolutely critical for your defense to know if the rules were followed. This 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? These actions can totally skew test results. A number of courts have excluded test results for violating the 20-minute rule, even though the accused may not have actually hiccuped, burped, or vomited.

In fact, a host of criteria must be met or the test results will often be thrown out.

These include:

  • 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


Thus, to defend you properly, a lawyer must obtain copies of the various logs, maintenance records, and the operator’s license or certification.

Your Attorney Should 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

Improperly administered breath tests

Houston DWI Lawyer

Your Attorney Must Understand the Rules Governing Field Sobriety Testing

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 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 your attorney to determine if the arresting officer completely followed the manual’s directions. Failure to do so 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 which are inconsistent with the manual’s rules. And, as discussed earlier, improper procedures may lead to the granting of a Motion to Suppress and the removal of evidence against you.

Your Attorney Must Have a Clear Understanding of the True Costs of a DWI

Your Houston DWI defense lawyer 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 surcharges ranging from $3,000 to $6,000 and 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).

You must take these extra penalties into account when deciding to plead guilty. If you’re not aware of these penalties, you cannot help but be the loser.

Learn about the new tough penalties for DWI.

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