If you gave a breath or blood test in your DWI, you have to employ a sound strategy to convince a jury that the result is not accurate. The reality is that most juries tend to trust police labs and scientific results. One common strategy employed by DWI attorneys is known as the “disconnect defense.” This defense might be available to you when you gave a breath or blood sample and the result was high (preferably well above a .15). In these cases, there will sometimes be a “disconnect” between the high result and a defendant’s normal appearance on a DWI video.
This strategy is successfully employed in the Greater Houston area. A high breath or blood is typically required because the result should be so high that it would be expected that we would see obvious signs of intoxication. To understand how this defense works in practice, it is useful to look at a particular instance where the defense was used to obtain a “not guilty” verdict.
Attorney Jose Ceja tried a .20 breath test DWI in Harris County. This client was stopped by the Houston Police Department and did well on police balance tests (also known as Standardized Field Sobriety Tests). There was also a gap of approximately two hours from the time of driving to when the test was actually administered. Through the State’s own witnesses, attorney Jose Ceja was able to establish that if the .20 number was accurate, that meant that, at a minimum, the defendant would have had to have consumed approximately 10 drinks, since each drink would get an adult male to about a .02.
However, as the State’s witness conceded, most people space out their drinks, which means that this defendant would have been absorbing and eliminating alcohol at the same time. Taking this into account, as well as the fact that there was a two-hour delay between the time of the stop and the time the breath test was administered, the State’s witness had no choice but to concede if the number was accurate, then the defendant would have had to have consumed an astonishing 12-14 drinks.
At the same time, the defendant did not look like someone who had nearly that much to drink. Another witness – the DWI task force officer who arrested the defendant – admitted that there were no driving facts consistent with intoxication (the stop was for speeding was is actually not listed as behavior consistent with intoxication under police DWI investigation training). The defendant sounded good and as noted above, did well on the police balance tests.
One problem in this DWI trial was that there was no specific problem that was detected regarding this particular breath test. But again, the State’s lab technician agreed that in a laboratory setting, it is not always possible to know the exact source of the error. Additionally, a DWI defense attorney should always raise the possibility of error in front of the jury. And perhaps more importantly, this jury had been prepared during jury selection to accept the idea that sometimes a result just doesn’t look right, and we should not be afraid to trust what we see with our own eyes in a DWI trial, especially where the result is contrary to the police’s own training and the research of the most well-respected toxicologists.
This DWI trial resulted in a not guilty verdict. The jury was willing to accept the defense that even though there was no “smoking gun” pointing to an error in the breath testing process, there was too much of a “disconnect” between the client’s appearance and the high breath test.
In order to successfully employ this defense, it is usually necessary to have a high blood test, and a client with excellent to above-average appearance and performance on balance tests. A jury should be prepared to accept this defense during jury selection, where the defense attorney will be permitted to talk to prospective jurors about any issue relevant to a DWI case. It can be helpful, but is not necessary, for the defense to employ its own expert. Often, as in the example above, it is possible for a defense attorney to use the State’s own witnesses against it.
In DWI cases where a “disconnect” defense is used, the State will typically try to argue that the reason that a defendant looked good is due to tolerance. An experienced DWI attorney will be prepared to address this tolerance explanation. First of all, the police’s own training states that the police balance tests are designed to “unmask” tolerance. In other words, according to the police’s own training, tolerance does not help an intoxicated person pass police balance tests during a DWI investigation. Also, a defense attorney should – as in all criminal cases – talk about the presumption of innocence extensively during voir dire. The jury should understand that the presumption of innocence is the only presumption that can be made in a DWI trial or any criminal case. Making an assumption that the only reason that the defendant looks good is because of his “tolerance” for alcohol goes contrary to the presumption of innocence since the State is asking the jury to believe the defendant has tolerance – or is even an alcoholic – without presenting evidence of his drinking habits (which the State will never have in a DWI trial).
The disconnect defense requires a thorough understanding of the science behind breath and blood testing, standardized field sobriety tests, and basic toxicology. A DWI attorney should be able to perform a “retrograde extrapolation” to estimate the number of drinks a defendant would have had to have consumed if the police result is accurate.
In the right case, the disconnect defense can be very powerful and potentially lead to an acquittal. But because a disconnect defense requires a fair amount of technical knowledge, you should hire an experienced DWI attorney to handle your case. Attorney Jose Ceja is a former prosecutor and has handled hundreds of DWI cases and obtained countless dismissals and “not guilty” verdicts. He has received extensive training on breath and blood testing and is also certified to administer Standardized Field Sobriety Tests. If you are arrested for DWI or any intoxication-related offense in the Greater Houston area, call Ceja Law Firm for a free consultation.
