6 Things Which Don’t Win Your DWI (By Themselves)

Your DWI May Have Some Great Defenses, But These Usually Aren’t

In some ways, these topics might be woven into your overall defense strategy, but it’s not as simple as people think.  To win your DWI case, your lawyer should use whatever is available.

1) “They didn’t read me my rights.”

Most people mean Miranda rights when they bring up this point.  Reading Miranda rights to you is NOT required, and it usually means little to nothing to your DWI case.  Bringing up this topic usually indicates a desperate hope it’ll help counteract an otherwise strong case.

Dramatic television shows and movies have molded the minds of the people watching to the point they believe the fiction they watch is reality, that Miranda holds mystical powers over provable facts.

Miranda doesn’t come into play in your case at all unless the police are interrogating you, and most of what happens during a routine DWI arrest is not considered by courts as interrogation.  Certain parts of your arrest experience could be affected by Miranda, but it’s not the silver bullet you thought it might be.

2) “I Didn’t Get My Phone Call Until I Was Put In Jail.”

When you get a phone call usually means nothing to your defense.  Not getting a phone call until after you’re booked into the jail doesn’t invalidate your arrest, nor does it mean anything was done wrong by cops.  Like with Miranda, television and movies have been the influential force behind people’s beliefs as to what actually happens in real life.  Dramatic scenes of the defiant “perp” declaring “I know my rights” and demanding “my phone call” doesn’t cause cops to shrink away meekly and defeated like it does in fiction.  Nonetheless, those scenes seem to have made a lasting impression on American audiences. In Texas, a phone must be made available to those in jail, but that’s about it.

3) “They Didn’t Let Me Talk To A Lawyer.”

“I asked for a lawyer, but I didn’t get one.”  This is a real problem, but it doesn’t win your DWI case.  You do have a right to an attorney during several stages of the entire process.  You don’t have a right to a lawyer wrapped around you at all times like a safety blanket, though. 

There’s no stable of defense attorneys hanging around the police station or jail at all hours waiting to be invoked so they can swoop into the interrogation room to rescue you, as if they were some magical fairy godmothers.  Police are supposed to be held in check by the invocation of such rights, however. 

In Texas, by invoking your right to counsel (a fancy word for lawyers) during or before an interrogation, the interrogation is supposed to stop; if it doesn’t stop, courts are obligated to forbid the use of the “fruits” of such interrogations, meaning they can’t use your testimonial statements against you.  In effect, it’s supposed to punish police by not allowing illegally obtained evidence to be used against you in court.

4) “I Asked For A Blood (Or Breath) Test Instead.”

The choice of what test to offer lies squarely with the police.  Upon arrest, you don’t get to insist on one or the other.  The “implied consent” legal doctrine effectively states you have already consented to give a breath, blood, or urine sample to the police, and police choose which one, not you; you don’t get to put conditions on your consent.  If they ask for one type of specimen, you either agree, or they consider it a “constructive” refusal.  

In practice, it’s not uncommon for police to go along with whatever the person will give, however.  Some cops actually ask people to make a choice.  Breath tests are much quicker and take less work than blood tests for cops, so breath is more often offered initially.

You have a right to get your own blood test shortly after arrest, but it is one of the most impotent rights available because virtually no one knows about it, even the cops, and the logistics of executing the process are unrealistic, at best.

5) “I Passed The Roadside Tests.”

That’s what you think.  With those tests, even if you are mostly right, you’re still “wrong”. Scarcely will people perform well on those tests.  Simply put, they are clearly made to make you fail. They put you in positions to make you appear unable to balance by making you do things which adversely affect your ability to balance normally. 

You think you are being graded fairly.  You’re not.  They grade you in such a manner as to virtually presuppose failure. For example, even if you execute the 9-step, heel-to-toe walk with absolute perfection for all 9 steps, you can be graded as a failure for what you did even before you started walking.  No real-life test would ever be so unfair, but that’s the reality of DWI law enforcement.

6) “The Cop Screwed Up Something/Was A Jerk.”

If you’ve never been arrested or rarely encountered cops, it might surprise you to learn some of them are jerks.  Sometimes, they appear to be jerks because they are just going about their jobs like they should, and you aren’t familiar with what they are supposed to be doing.  

They are people who have good days and bad days, and they are not uniformly one personality, nice or jerkish.  Yes, some are jerks whether on-duty or off-duty; that’s how it is with any line of work, including attorneys and whatever work you do.  Regardless, it doesn’t mean your DWI will be dismissed.

What Does It All Mean?

While none of these factors is a sure-fire way to win your DWI case, each could play a role in crafting a defense in front of a jury.  Juries typically don’t like jerks, don’t like to see cops mistreat people, and don’t want to be on the unfair side of a verdict.  Juries often understand and sympathize with your motivations for asking to have a blood test, for example.

Just understand DWI cases are not as simple as some people may want to believe.  If you have a DWI, make sure you go with a lawyer who is willing to tell you like it is, rather than what you might want to hear.  Many factors can be used to tell your side of the story, but they may not be used quite the way you thought.