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 proseuction 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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Bristol Myers is an Austin Criminal Lawyer and is Board Certified as a specialist in Criminal Law by the Texas Board of Legal Specialization.

First, check your conditions of probation.  Most Texas counties require that you report your arrest to your probation officer within 48-72 hours.  Consuming alcohol and getting arrested are two violations.  Don’t add a third by not picking up the phone.  If your conditions require it, call your P.O., report your arrest, but DO NOT admit drinking or otherwise discuss the details of your case with your P.O.

Second, understand that a motion to revoke your probation and a warrant for your arrest are inevtiable, at least initially.  Most adult probation departments in Texas automatically move to revoke for a new arrest.  However, unless you are on felony probation, you are likely entitled to a bond on the motion to revoke.  Your lawyer can help you navigate the bonding process.

Finally, clean up any outstanding “technical” violations.  If you are behind on supervision fees, fines or court costs, pay them up.  If you lack community service hours, get caught up.  Finish any classes or counseling that you can.

These simple steps will have you and your lawyer well-positioned to argue for reinstatement on probation (or at least some intermediate sanction short of revocation), particularly if the new DWI case is weak.