Two Ways to Fight a DWI Charge

The police are always right? Yeah, right! A good DWI attorney should know how to fight a DWI charge by using police mistakes to YOUR advantage.

Facing a DWI charge never means that you have to roll over and plead guilty, no matter what the police say. There are plenty of ways to fight a DWI charge and defend yourself in court, but we’re going to discuss two of them here: burden of proof and police mistakes.


Burden of Proof

At the end of a trial, the jury is told which elements the prosecution must have proven in order for a person to be convicted. For most of the major driving-alcohol related crimes, the prosecution must prove that the defendant was: (1) intoxicated (2) while operating (3) a motor vehicle (4) in a public place. In every court case, the State has the burden of proof, which means they must prove each and every one of these elements beyond a reasonable doubt in order to obtain a conviction. You could also possibly be charged with Felony DWI, Intoxication Assault, Intoxication Manslaughter, or “DWI With Child Passenger” (another felony).

These charges are complex. It is important to remember that the State must prove beyond a reasonable doubt each element of the crime being charged. DWI-trained attorneys, like those at our firm, will look at each element of the charge and will force the State to prove each and every element beyond a reasonable doubt before you are found guilty. The jury instructions are very specific; if the State is not able to prove every one of the elements, the charge can be dismissed or you will be found not guilty.


Police Mistakes

Just because you are charged with a DWI, it doesn’t mean you are guilty. There are numerous policies, procedures, and laws that govern the actions of the police and mistakes, misunderstandings, or errors in these policies—from the initial contact to the final booking—may help in winning your DWI.

Here are some of the common police mistakes that we encounter in DWI cases:

Improper Stops

TIPS OR ANONYMOUS CALLS – For most DWI cases, an officer cannot stop you based solely on an anonymous call. The officer must observe an actual violation of the law before the stop is legal or the complaining witness must testify.

MISTAKE OF LAW – Even if the officer makes a valid traffic stop in some cases an equally valid “affirmative defense” is that you were mistaken about the law.

WEAVING IN LANE – This observation alone is not a proper basis to stop a driver. No car drives completely straight. There are various reasons a driver may drift or weave within a lane.

STOPPING THE WRONG CAR – Just as an officer must see an actual violation, the officer must be able to clearly identify the car stopped and identify why it was stopped.

STOPPING FOR A HUNCH OR “JUST FELT LIKE IT” – Rarely will an officer admit this was the reason for a stop. Almost every officer knows this is an illegal stop and any resulting evidence will be excluded.


Improper Arrest

BAD STANDARDIZED FIELD SOBRIETY TEST (SFSTs)– The roadside gymnastic tests are a tool used to make an arrest decision. The tests have specific rules and observations. If they are not followed, then any conclusion would be improper, as the validity of the field studies is compromised.

WEATHER – Weather issues can affect observations of driving and performance on SFSTs. Failure to consider this factor can affect credibility. For example, administering the Horizontal Gaze Nystagmus test in the rain can cause the eyes to jerk due to the rain drops hitting the eye or because of the light reflecting off the droplets.

MEDICAL-PHYSICAL CONDITIONS – There are numerous medical and physical conditions that can affect a person’s roadside behavior and performance. These issues should be considered and factored into an officer’s arrest decision.

ILLEGAL EXTENSION OF STOP – Once an officer has completed the reason for the initial stop, he should terminate the contact and allow you to leave. For instance, if you are stopped for speeding, you should receive a ticket and be allowed to leave unless there is a clearly articulated reason to extend the detention.

PRIVATE PROPERTY– A DWI arrest is not normally proper if you are on private property. However, recent case law allows officers to make an arrest within a gated community if he is able to enter the community legally.

VIDEOS DON’T SUPPORT ARREST REPORT– Many agencies use videos. You have probably watched COPS on TV. When the videos are available, they may not support the arrest decision or may show facts different from what is in the police report. The worst offense reports are those that cannot be backed up with a video because the arresting officer knows it is his word against the word of a drunk driver.


Improper Blood Test

IMPROPER REQUEST – There are specific reasons under the law for requesting and taking a blood test. If these are not followed, the test may be excluded.

STATUTORY REQUIREMENTS – There are specific procedures that must be followed in performing a blood test. Not following any of these procedures to the letter can result in the test result being dismissed from court.

LAB MISTAKES – Most often a blood sample is not tested by a human. Many samples are loaded in a machine; it runs overnight and prints out multiple reports in the morning. Results are open to many human and machine mistakes.


Improper Breath Test

TEXAS DPS BREATH TEST PROGRAM – The Texas Department of Public Safety sets the rules governing all breath testing in the State of Texas. Failure to follow the rules will result in the exclusion of the test from court evidence.

CERTIFICATION – The operator of the machine must be certified and the certification must be renewed annually.

CERTIFICATION OF MACHINE – The machine must be certified and periodic maintenance must be performed on it.

INTERFERENTS – There are numerous chemical and physical items that can interfere with a proper test, which can result in false readings.

MACHINE NOT CALIBRATED – If a machine is not properly calibrated, it will result in false or unverifiable readings.

MACHINE MALFUNCTION – The breathalyzer machine is 1980’s technology. There are numerous parts of the machine that may not be working but the machine will still generate a Blood Alcohol Content (BAC) reading. That reading is likely incorrect.

PROCEDURES NOT FOLLOWED – There are specific procedures that must be followed before a proper test can be administered.

Procedural Mistakes

MIRANDIZE/READ YOUR RIGHTS – Although the law will not require a reading of your Miranda Rights, if the officer continues to question you after your arrest, many statements may be excludable.

WITNESS APPEARANCE – If a witness was responsible for your initial stop or other key element, the witness will also have to appear at key points in the case.

INCONSISTENT STATEMENTS BY OFFICERS– If the cop gives different stories in his report from later testimony, it brings his credibility into question.

EXPERT WITNESS – We have experts who often can analyze reports, breath tests, and video tapes to help determine if the arrest was proper and the facts are correctly presented.

ABSORPTIVE STAGE – It is a medical fact that during the early stages of drinking, you will show an artificial ‘peak’ while absorbing the alcohol. This means that during the early stages of absorbing alcohol (before it is fully absorbed into your system) you will yield an artificially high BAC result.


Many people are raised to believe that the police are always right, when in fact, they are susceptible to bias and human error like anyone else. A qualified DWI attorney will have the knowledge and experience to know how to fight a DWI charge because they know where the case can go wrong (both in and out of the courtroom).


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1 Comment

  • Leviticus Bennett Reply

    It’s good to know that just because you are charged with a DWI, it doesn’t mean you are guilty and that there are plenty of ways to prove your innocence. My cousin was recently charges with a DWI. He claims he didn’t do anything wrong, so we’re trying to help him find an attorney.

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