Bristol Myers


Criminal Law Austin, Texas


Motion to suppress granted

August 12th, 2009

“Every case is different.” Usually criminal defense lawyers tell that to folks to downplay previous successes. Sometimes, as in today’s case, it’s a reminder to stay aggressive.

It was just about the worst kind of DWI: the client wrecked into a pole and blew over twice the legal limit. The airbags had deployed, so I figured I might be able to argue the high breath score was from particulate matter inhaled by my client during the collision.

“I heard you got a 20-minute Not Guilty verdict from a jury on a DWI with a .17 blood test,” the client said. “Yes,” I replied, “but every case is different.”

Indeed, the cases are different. Before, I had a client who looked perfect on the video, and now I had a client who, according to the police, failed the field sobriety tests miserably. And there was no car accident in the other case. What to do?

I filed a motion to suppress the breath test and the field sobriety tests and set it for a hearing. At best, I figured that the hearing would be a good warm-up for trial: a chance to see how the cops acted on the witness stand. Then the unexpected occurred.

The first officer on the scene testified that he didn’t notice any signs of intoxication in my client. He said my client just seemed shaken up from the accident. The second officer, the one who said my client failed his field tests so badly, well, he fell apart under my cross-examination.

Did my client appear obviously intoxicated at first glance? No. Did the officer see any signs of intoxication before administering the field tests? No. Had he talked to EMS about my client’s possible injuries? No. Did it ever occur to him that my client might be injured and not drunk? No. And so it went–until the judge granted my motion to suppress: no field tests, no breath tests. The prosecution now has no evidence to use at trial, and the case will have to be dismissed.

The lesson? Every case is different. This “bad DWI” was different from most other collision/high breath test cases I’ve handled. The difference came from the witness stand, and it would have never been discovered had my client pled out and denied me permission to be aggressive.

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