44 Ways To Defend A DWI

So you got busted for DWI. DON’T FREAK OUT! The San Antonio DWI lawyer Jamie Balagia is ready to help you fight to save your driver’s license, your freedom, and your ability to earn a living. Contact us right now for a free, no obligation consultation.

JUST SAY NO! – We still have Constitutional Rights but we are in danger of losing them. In a MADD induced panic state we are failing to stand up for the Rights that our forefathers fought and died to obtain for us. You don’t have to take the police balance exercises. You don’t have to give your breath or blood. You have the right to speak to an attorney when you are being investigated for a criminal offense (DWI). You don’t have to let the cops trick you into doing something that you know they will use against you just because you are a nice person and a good citizen.

ILLEGAL STOP OF PERSON OR VEHICLE – A cop can’t stop you unless he can give a lawful and reasonable basis and be able to articulate it. A cop has a reasonable basis when the cop believes that you committed some traffic violation. They can’t just pull you over for no reason and arrest you unless a violation occurs. One of the most common reasons people get pulled over for DWI was weaving. You can’t be stopped if the only driving fact the police officer has is weaving inside the lane, it’s simply not a crime! Our Attorneys will make sure that the cops had a valid reason to pull you over. State v. Tarvin 972 S.W.2d 910 (Tex.App. Waco, 1998), State v. Cerney 28 S.W.3d 796 (Tex.App. Corpus Christi, 2000)

ANONYMOUS TIPS OF DRUNK DRIVING – You can’t be stopped on an anonymous phone tip that you appeared to be driving while intoxicated. Our Attorneys will make sure some anonymous tipster isn’t responsible for bad things going to worse (a DWI conviction) after your arrest.

NO PROBABLE CAUSE TO ARREST – Cops can’t pull you over on a hunch or a gut feeling. Officers must have very specific facts and be able to articulate them, or the arrest will be suppressed and the “fruit of the poisonous tree” evidence tossed at trial. Our Attorneys will flush out this issue to make sure that the probable cause existed for the arrest.

ILLEGAL SEARCH – If the cops to don’t have lawful authority to search you or your car any evidence confiscated will be suppressed and thrown out of court! Anything they find is tainted, and cannot be used against you. Our Attorneys will ensure that you weren’t searched illegally.

STANDARD FIELD SOBRIETY TESTING (SFST) IS INACCURATE – When the police officers administer the SFST correctly to healthy, coordinated individuals, the one-leg stand test is only 65% accurate, and the walk-and-turn test is only 68% accurate (at best) in determining if a person is under the influence. If you have ANY type of injury or any medical condition, 50 pounds or greater overweight, and/or 65 years or older, you cannot be validly judged by these tests. Jamie Balagia and our staff are qualified to perform the Standard Field Sobriety Tests, and will attack the operator and the test itself.

SFST ARE DESIGNED FOR FAILURE – Imagine that you are given the assignment to create a test that would cause a person to lose their balance. Would you have the person stand on one leg or two; stand normally or heel to toe; keep their arms at their side or out to help balance; turn while leaving one foot planted or turn normally; fix your gauze on the tip of you toe or at the horizon (while standing on one foot)? Clearly, these so-called tests are merely police balance tricks designed to give you a drunken appearance to use against you later in court.

NON-STANDARDIZED FIELD TESTS ARE INVALID – Cops often use bogus sobriety testing methods to determine if your drunk. These tests include saying the alphabet, counting backwards, touching your finger to your nose, or estimating time with your eyes closed. These tests aren’t backed by the Federal Government, State Government, or the scientific community, and these bogus tests cannot be used against you. They were rejected as Standardized because they were deemed accurate only 50% of the time. You might as well have the officer flip a coin – Heads you pass and Tails you go to jail. Jamie Balagia and our staff are qualified to perform the Standard Field Sobriety Tests, and will attack the operator and the test itself.

FIELD SOBRIETY TEST IMPROPERLY ADMINISTERED – According to the National Highway and Traffic Safety Administration and most courts, improperly administered field tests are not valid evidence of intoxication and these tests are inadmissible and cannot be used against you.

MEDICAL AND HEALTH PROBLEMS – Orthopedic problems, earaches, ear infections, sinus and allergy concerns, fatigue and assorted eye problems all effect the validity of the field sobriety test. Many of these health issues also mimic intoxication but the cops never allow you to explain their confusion and you pay the price. Our Attorneys and their experts will be able to determine your personal condition and may be able to disqualify you from the test.

BOOKING ROOM VIDEOS – Often, officers like to pad the report and embellish the facts. Have no fear! Many police stations videotape suspects at the police station, where you look more sober than the arresting officer! These tapes help us to determine the best outcome in your particular case. Our Attorneys will show the jury that they don’t have lying eyes. (You really weren’t drunk!)

IN-SQUAD VIDEOS – Just like the booking videos, more and more often, the cops use video to record the administration of the standard field sobriety test. Often times, these very videos contradict and expose embellished police testimony. These videos help us more than they help them. Our Attorneys have never seen a video that showed a client that was “drunker” than the written version in the police report.

NO MIRANDA WARNINGS – Can you believe in this day and age that some officers STILL forget to read Miranda Warnings???? The State can’t use anything you say while in custody for a DWI when they forget to give those warnings.

POLICE BLOOD TEST INACCURATE – Many times, police blood testing fails to follow prescribed rules of testing, analysis, or preservation recommendations.  Our Attorneys and can poke holes in the procedure used at the hospital or by the jail nurse if you really had the worse case scenario.

HOSPITAL BLOOD TEST INACCURATE –Blood tests can overestimate a person’s true blood alcohol content level by as much as 18% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons! Our Attorneys and their experts will impress this crucial information into the jury.

OBSERVATION PERIOD PERFORMED INCORRECTLY – Texas requires that the cops observe the driver for 15 minutes prior to the blow for the results of the breath test to be valid. Often times the observing officer isn’t observing! Our Attorneys are qualified to perform the observation period and will alert to any discrepancy.

BREATH TESTS ARE INACCURATE – Forget the notion that the breath test isn’t beatable. Virtually everyone except the manufacturer of the machine and the state concede that one breath test alone is unreliable. Breath testing has a 25% margin of error! It’s no surprise that these machines use the old Atari® technology. There are multiple factors that can elevate the results of a breath test. Our Attorneys and their experts will attack the breath test and show the jury the machine is nothing but a number generator. Let’s play PONG with the Machine.

MOUTH ALCOHOL – Mouth alcohol can greatly increase the results of a breath test. Alcohol can get trapped in the mouth if you recently ate, have dentures, cavities, retainers, were chewing gum or tobacco. Our Attorneys can lower your BAC based on these factors.

BREATHALYZER CONTRAPTION MALFUNCTIONS – Texas requires that if there is a malfunction or repair of the breath test instrument within a certain period of time before or after your breath test, the results are presumed invalid!

HAND HELD ALCOHOL DETECTION DEVICES – Texas prohibits the admission of the result (BAC – breath alcohol content) of the Pre Alcohol Screening (PAS) device and Pre Breath Test (PBT) device except for evidence of the presence of alcohol on your breath.

BREATH TEST DEVICE NOT APPROVED BY THE FEDS – A breath-testing instrument must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices, or the results are inadmissible. Our Attorneys know the list, and will make sure the busting machine was on it.

FAILURE TO PROVE DRIVING UNDER THE INFLUENCE – Your admission to driving, without more, does not prove a charge of driving under the influence. The state must prove beyond a reasonable doubt that you were intoxicated or did not have the normal use of your mental or physical faculties at the time of operating a vehicle.

INDEPENDENT WITNESSES – Independent witnesses to the arrest or accident can help establish sobriety.  Our Attorneys and their staff will search out and locate these witnesses and get them to testify.

OFFICER’S PRIOR DISCIPLINARY RECORD – A police officer’s previous disciplinary record can be used to attack the officer’s credibility. Our staff will get the disciplinary record and expose the truth about the officer at trial.

EXPERT WITNESSES – Expert witnesses are available to review the validity of breath tests, blood tests and field sobriety tests. Our experts can expose a faulty test. Our Attorneys only use the best experts.

BAD WEATHER – Bad Weather can greatly impede driving or a standard field sobriety test. High winds and other weather conditions can and do affect balance or driving. Our Attorneys and their staff will make sure the weather didn’t have a factor on your test. We research the important weather factors that were present at the time of your arrest.

PRIOR INCONSISTENT STATEMENTS BY POLICE OFFICERS – A cop’s credibility can be impeached on the stand by any inconsistent statement he made in any prior testimony, police reports, or other statement. Our Attorneys will examine every word of the arresting officer and use it against him. We maintain a data based that is constantly being updated with transcripts and prior testimony of the most active DWI cops.

POST-DRIVING ABSORPTION OF ALCOHOL – The prosecutor must prove the blood or breath alcohol at the time of driving. Recent consumption of alcohol just prior to driving will cause the test results to be higher than what the true level was when the person was operating the automobile.

INTERFERING SUBSTANCES – Many items contain forms of alcohol, which may cause false results, such as asthma spray, cough drops, paints, fingernail polish, breath mints and breath fresheners. These items can cause the breath results to be invalid.

BREATH MACHINE NOT PROPERLY OPERATED – The manufacturers of breath testing devices have specified protocols, which must be followed for a breath result to be valid. Failure to follow these requirements will result in improper readings. The State of Texas has failed to follow the manufacturer’s guidelines as standard protocol.

FAILURES TO PRODUCE DISPATCH TAPES – Most stops of vehicles are recorded on dispatch tapes, as well as recording police communications regarding an arrest of an individual. Failure to preserve such tapes upon request can cause all evidence, which could have been recorded to be suppressed.

MISLEADING STATEMENTS BY POLICE OFFICERS – Any misleading statement by the police regarding the consequences of taking (or refusing) a blood, breath, or urine test has the potential to cause the suspension to be reversed and removed from the driver’s record.

STATUTES OF LIMITATIONS – A misdemeanor charge of DWI must be filed within a certain period of time (two years in Texas) of the date of offense, or the charges will be dismissed outright.

PRIVATE PROPERTY – A person who has not driven a motor vehicle (car) on a public place cannot be convicted for drunk driving.

FAILURE TO DISCLOSE EXPERTS – The failure of the prosecutor to disclose the state’s expert(s) will cause those witnesses to be barred from testifying against the defendant, if the attorney does his job correctly.

LACTATE RINGERS – When hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results will report falsely elevated, and therefore invalid, readings.

FAILURE TO RECORD CERTIFICATION TESTS – The failure to include the value of the simulator solution used to test breath machines will cause the breath test results to be inadmissible in court against the driver.

FORCED BLOOD DRAWS – In Texas, the police can not take a blood test against the driver’s consent where there has not been an injury or death involved, (without a warrant) or the result is inadmissible. Never give consent to the Dracula cops. Our Attorneys demand a contested hearing to try to suppress wrongfully obtained blood.

FAILURE TO PROVIDE SPEEDY TRIAL – If a client is not provided with a trial within a certain period of time, the charges may be dismissed. A Motion must be filed and a hearing held to protect your valuable right to a speedy trial in order that witnesses and evidence don’t disappear.

HGN – (“HERE GOES NOTHING”) – Can you imagine needing to get your eyes examined for a possible disease or injury and when you call the eye doctor, a cop answers the phone and schedules you an appointment. Never let the cops do “the eye test” on you. If he has an Ophthalmologist license then he shouldn’t be in a patrol car.

WHAT CAUSES HGN (HORIZONTAL GAUZE NYSTAGMUS) –The cops will testify that they are only looking for Alcohol Induced Nystagmus and that is the only type they can recognize. What the cops don’t know is that there are 38 causes of HGN! Our Attorneys challenge any SFST Certified police officer to review our library of Horizontal Gauze Nystagmus videos and tell us which are the alcohol related ones and which are not. Impossible without the most exact of computerized eye examination equipment. Shultz v. State 664 A.2d 60, 77 (Md.App. 1995)

THERE ARE AT LEAST 47 KNOWN CAUSES OF NYSTAGMUS – Courts throughout the nation have recognized the factual truth of this statement. Howell v. State, NR 3d, WL 2450920 (Tex.App. Austin, 2006).

PATROL UNIT OVERHEAD LIGHTS CAUSE OPTIKINETIC NYSTAGMUS – Often it is the police vehicle which causes the Nystagmus which the cop incorrectly interprets as probable cause to arrest you.

If you get stopped by the police, do not let your lack of knowledge get you arrested. Contact the San Antonio DWI attorney Jamie Balagia at our office 24/7 for a free, no obligation consultation. If you found this page useful, please share it on Facebook, Twitter, or your blog. The better informed our citizens are, the better protection we all have against overzealous government actions.

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