Getting a DWI dismissed Pretrial: A Case Study
DWI charges can sometimes be dismissed pretrial by filing motions that challenge the prosecution’s case. If you have a pending DWI charge in Travis County, you may be interested to hear how I got one client’s case dismissed with a pretrial motion to suppress.
This post is for educational purposes only and does not constitute legal advice. What worked in this case may not work in your specific situation. If you would like to discuss your legal issue, it’s as easy as scheduling a consultation with this contact form.
This post is for educational purposes only and does not constitute legal advice. What worked in this case may not work in your specific situation. If you would like to discuss your legal issue, it’s as easy as scheduling a consultation with this contact form.
The DWI Stop
This case involves a driver coming home from a rock concert at the Moody Center. He was alone in the vehicle and he drives outside of his lane on the flyover from 35 to hwy 71. He then signals properly, gets into the left lane and then goes outside of the line one more time. The officer lights him up, and he respectfully exits the hwy and pulls into a parking lot.
Poor SFSTs
The officers conducted Standard Field Sobriety Tests (SFSTs). These are the tests you may be familiar with – walk and turn, one leg stand, and horizontal gaze nystagmus tests. My client performed poorly on these tests, and the officers move to the next phase – BAC testing.
High BAC – Class A misdemeanor DWI
My client declined a breathalyzer (good idea!), but the officers do get a warrant and draw his blood. His BAC is over .15, which is enough to bump the charge to a class A misdemeanor. Additionally, he had a previous DWI, so there were two ways it is bumped up to a class A. This also means that if convicted on the present DWI, his next one would automatically be charged as a felony. So it’s a big deal. Also, this is a fairly normal DWI investigation. There might not be much to challenge here. Unless…The Law – no probable cause for DWI stop
It’s part of my job to monitor new cases in the area of criminal law, and it came to my attention that a new case out of the Texas Supreme Court – State v. Hardin – which states that driving across lines of the lane without anything more reckless than that – is NOT grounds for probable cause. And the reason is that the traffic doesn’t state that you have to stay within the lines at all times – just that you have to stay “as nearly as practical” within the lane.
The reason for this should be obvious. In every day driving, people are going to go over their lane occasionally. We don’t want police to cite this every single time – only when the violation is obvious and is causing a danger on the road.
This case came out AFTER the stop, but that doesn’t matter. The case is just interpreting an existing statute – in this case a traffic law. So, it DOES apply retroactively. The next step is to challenge the stop.
The Motion to Suppress and Hearing
Once I decide the basis for the challenge, the first step is to file a motion to suppress. Basically I’m arguing to the Court that all evidence gathered at the DWI stop – the BAC test, the SFSTs, etc. – should be thrown out of court because there was no probable cause for the stop in the first place.
Once I file the motion, I ask the Court to set it for a hearing. At the hearing, the Prosecutor will typically call the police officer as a witness (in some cases they will call experts or other witnesses as well). Once it is set, I will sometimes see if the prosecutor wants to go forward with the hearing or dismiss right now. If my case is strong enough, they may decide not to expend resources on a hearing that they will likely lose.
Questioning the Police Officer
Here, though, the prosecutors decided to go forward with the hearing. They called the police officer to the stand. Unsurprisingly, he testified that he stopped my client after he was driving dangerously. We watched the Dashcam video in court and I highlighted that traffic was light and there were no vehicles nearby when my client briefly touched the white line.
Here’s where the officer threw a curveball. He stated that before the dashcam came on, my client was speeding. This is an important detail because it would give him independent probable cause for the stop. This is an old trick police officers use. When they’re wrong on one reason, they just make up another.
Speeding was not listed in his report or the probable cause affidavit. He had no reasonable explanation as to why it would be absent, nor did he have a reason why, despite it missing on the report, he suddenly remembered that he was speeding months after the fact. Ultimately, the judge did not find this statement credible. Based on the caselaw in Hardin, she suppressed all evidence from the stop.
DWI Dismissed?
You might believe that this means the case is automatically dismissed, but the State actually waited several weeks to dismiss. They were considering appealing the case, but after consideration, decided not to appeal. Without any admissible evidence for the DWI, they finally decided to dismiss. While they were contemplating, my client’s bond conditions remained, and unfortunately he was still required to have an Ignition Interlock Device in his car for several extra weeks.
An Experienced Attorney is important when fighting DWI charges
Rob Chesnutt is an experienced criminal defense attorney. With a principal office in Austin, Texas, his firm ATX Legal serves Travis, Hays and Williamson counties. He created the 2023 DWI Guide for cases in Travis County. This post is for educational purposes only and is not to be construed as legal advice. If you would like legal advice on your specific case, we offer free case evaluations. Visit us at ATX.Legal.
