In a criminal case, it is always the burden of the prosecutor to prove the elements of a criminal offense beyond a reasonable doubt. In a DWI, the basic elements are that a person was driving a vehicle while intoxicated. Although an effective DWI attorney will challenge every aspect of a case (sometimes DWI trials can be won where the State cannot prove a defendant was driving), most of the time, the most contested issue is whether or not a defendant was intoxicated.
But what does “intoxication” mean in the context of a DWI? Many non-lawyers may equate the term intoxication with being drunk, but intoxication has a specific meaning in Texas. Under Texas Penal Code 49.01(2), “intoxicated” means not having the normal use of mental or physical faculties as a result of consuming alcohol, or a drug, or a combination of the two, or having an alcohol concentration of .08 or more.
To prove that a person lost the “normal use” of their mental or physical faculties, prosecutors typically rely on the testimony of the police. Police officers receive training to handle DWIs that claims to teach them how to spot intoxicated drivers by looking at their driving, observing their appearance and behavior and by their performance on police balance tests, known as Standardized Field Sobriety Tests (SFSTs).
Since there is no definition for when someone has lost the “normal” use of their mental or physical faculties, police officers will frequently argue that they formed an opinion that a person lost their mental of physical faculties by pointing out evidence of intoxication they observed during the investigation.
To call the officer’s opinion into question, a DWI attorney should be familiar with the police balance tests (attorney Jose Ceja is certified to administer police balance tests), and show that a police officer’s conclusions were inaccurate or unfair. In many DWI cases, police officers will exaggerate or fabricate evidence of intoxication. In other cases, police officers may improperly administer the police balance tests in way that is unfair to the defendant. Additionally, a DWI attorney should show reasons other than intoxication why a defendant is exhibiting certain symptoms that are claimed to be evidence of intoxication (for example, it may be very difficult for a person with a medical condition to pass police balance tests).
As noted above, the other way intoxication can be proved in a DWI case in Texas is by showing that a person had an alcohol concentration of .08 or higher. To prove intoxication in this way, it is obviously necessary that a defendant is administered a breath or blood test. In the Greater Houston area, when a defendant is arrested for DWI, they will usually be asked for a breath sample. If the person refuses, the police may apply for a search warrant to obtain a blood sample (in some cases the police ask for a blood sample rather than a breath sample initially).
But just because the police obtain a breath or blood sample that is .08 or higher does not mean that a person is automatically guilty. At a DWI trial, the State of Texas has to show that the sample is reliable before it is even heard by a jury. Even if the jury hears about a sample that is .08 or higher in a DWI trial, a defense attorney can still convince the jury that the sample is unreliable.
Entire textbooks are written on fighting breath or blood tests in DWI trials. But every experienced DWI attorney should obtain all of the records from the lab showing how the sample was collected and analyzed, and how the equipment that performed the analysis was being maintained and functioning. In DWI cases, a breath or blood sample is taken and analyzed in police labs that are plagued by poor work and analysts who are more interested in getting a conviction than doing accurate science. The challenge with a breath or blood DWI is that most jurors come into a trial assuming that whatever a lab says is accurate. An experienced DWI attorney should be able to methodically cast doubt on the findings and motivations of a lab.
On occasion, a DWI attorney can employ what some attorneys call a “disconnect” defense. Where there is a very high breath or blood result, but a defendant who looks and sounds good on video, that can sometimes suggest that there was an error, even though the specific reason for the error may be unknown. Under the right set of facts, a “disconnect” defense can be a very powerful defense that can lead to a verdict of “not guilty.”
A skilled DWI attorney should also get a jury thinking about the issues relevant to the defense at the beginning of a trial. The first stage of a criminal trial is jury selection. During jury selection, the defense attorney will get to talk to the jury about any issues relevant to the case. For example, in a DWI case, a defense attorney could ask a jury to consider what “normal” really means as it relates to the first way of proving intoxication. Is normal a single point, where a person can be considered normal or not? Or is normal more of a range? Keeping the presumption of innocence in mind, how can you decide what is “normal” for a person who you have never met before?
Although most DWIs filed in Texas are misdemeanors, DWIs can be more technically challenging than most felonies due to the science and specialized police training involved. When choosing a DWI attorney, it is critical to hire an attorney with the understanding to be able to thoroughly challenge every aspect of your case, including the issue of intoxication. If you are charged with DWI anywhere in the Greater Houston area, call Ceja Law Firm today.