The Truth about DWI Charges

Generally speaking criminal defense lawyers look forward to representing people charged with DWIs.

Many clients clients charged with a DWI are reasonable, articulate and, probably most importantly to lawyers, are able to pay a fee. Unless a person is charged with having committed their third DWI, the stakes are not as high as when representing a client charged with a felony crime, and unless there was an accident, the lawyer does not have to confront an injured victim. As a consequence, lawyers aggressively market for the DWI business, and as usual, when aggressive marketing is taking place, the truth is often sacrificed. The following is a little “straight talk” about DWIs.

The many DWI cases that go to trial have similar facts. The defendant was driving between the hours of 11 pm and 5 am and is stopped by a police officer. The officer claims to smell the odor of alcohol and asks the driver if he has had anything to drink. The driver says he had one or two drinks several hours ago. The officer asks the driver to perform field sobriety tests. Usually the first is the horizontal gaze nystagmus test.

This is the test where the officer asks the driver to track a pen or flashlight with his eyes. The officer concludes that the eye began to shake or tremble while tracking the light at a certain point and concludes the driver failed this test. The officer then conducts the “walk-in-line” test and the “one-legged stand” test. The officer concludes that the driver has failed these tests and takes the driver to the police station. The police officer then offers the driver the opportunity to have his breath analyzed for the presence of alcohol and hopefully (at least from the perspective of the driver) the driver refused to take the test. The driver bonds out of jail the next morning and begins the process of hiring a criminal defense lawyer.

If, contrary to my hypothetical, the defendant gave a breath specimen and failed, it is more difficult to win the DWI case. DWI defendants are acquitted in “breath cases” but not nearly as often in “refusal” cases. Claims that the machines are rigged, or that a jury is easily persuaded that the machines are invalid, should be taken with a grain of salt. If the test shows that the driver is close to the legal limit, our firm has successfully argued that at the time the driver was stopped his body had not yet absorbed a sufficient amount to have crossed the legal limit. Sometimes when the test shows that the driver is way over the legal limit, but the video nevertheless looks good, one can argue that the test must be inaccurate.

DWI “third” trials are difficult cases. Unfortunately for the defendant, the jury will be informed of the prior DWI convictions, and likely will, in what would otherwise be a close case, see a pattern in the defendant’s behavior giving the State an edge.

It should always be borne in mind in a DWI case that a picture (or video) is worth a thousand words. The biggest single factor that will determine the outcome of a DWI case is how the defendant appears on video. DWI’s are unique in that the jury does not have to rely on the judgment of a police officer or some other eyewitness, but get to rely on their own judgment in determining whether the defendant is guilty. A bad video, one in which the defendant is clearly swaying or has slurred speech, for example, is difficult to win. Sometimes evidence that the defendant suffers from a medical condition can explain what otherwise would appear to be signs of intoxication.

Even if the defendant looks good on video it the State may be able to secure a conviction if the police officer is able to credibly explain why she concluded the driver was intoxicated. It should be borne in mind that the jury will be instructed that the offense is committed if the driver was influenced by alcohol to the extent that the driver’s mental or physical faculties were no longer “normal.” “Normal” is not defined for the jury. The important thing to remember it that it is not a “driving while drunk” charge. I think most juries get the distinction between driving while intoxicated and driving while drunk, but client’s often struggle with this distinction. It is not uncommon for clients to insist that they cannot be guilty because they were not “drunk,” despite the fact that the jury can, and often will, find them guilty even if they think the client was not “drunk” but merely “intoxicated,” as the term is defined under the law. Statistically, about 50% of DWI trials result in an acquittal and most cases that go to trial have good videos. When the video is good, variables such as the credibility of the police officer, the appearance of the defendant, and the quality of the lawyer all become important factors.

Despite the fact that the mere appearance of the defendant can be an important factor, defendants in DWI trials rarely should testify. Usually, they have made admissions while being questioned that will fuel an effective cross-examination by the State. For example, if the defendant admitted to having had a couple of drinks, it is difficult to fend off questions about the effect those drinks would have had on the defendant. If sobriety’s is normal, it is difficult to contend that one is normal after having had a couple of drinks.

Finally, it should be noted that in many counties there is little penalty for first time DWI defendants to go to trial apart from any additional legal fess that they may ensue. Often the punishment for pleading guilty to a first time DWI is the same the judge will impose if found guilty after trial.

At our law firm we have had numerous successful results recently in DWI cases without going to trial. We have negotiated pleas to a non-DWI traffic offenses to which our clients only had to pay a small fine.

Mick Mickelsen is a nationally recognized criminal trial attorney with more than 30 years of experience defending people charged with white-collar crimes, drug offenses, sex crimes, murder, and other serious state and federal offenses.