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DWI Defenses And Winning Techniques

Each client’s case is different. Conroe Texas DWI Lawyer Doug Atkinson will evaluate your video, the offense report, and other related facts to develop the best strategy to win your case. There a number of ways to fight your DWI including:

1. The administration of the HGN test.
When the National Highway and Safety Administration designed the HGN, they set out strict guidelines for the officers administering the test.

  • When performing the test, the officer must be sure that the citizen faces away from the flashing lights of the patrol car or passing traffic. Facing the light may cause optokinetic nystagums, invalidating the results of test.
  • If the officer fails to hold his finger or object in the correct position, does not make the correct number of passes, or does not take the correct amount of time to do the passes then the test can also be invalidated.

Law enforcement officers are put through training to administer the Horizontal Gaze Nystagmus (HGN), but they are not ophthalmologists or optometrists. Doug Atkinson uses tough cross examination to get the HGN thrown out of court if performed incorrectly. By keeping the HGN results out of court, the government has one less piece of evidence to use against you. Further, if the HGN is correctly performed, Doug uses tough cross examination to expose the faults, inaccuracy, and unreliability with this field sobriety test. Doug Atkinson understands the HGN. Doug Atkinson is certified to administer all standardized field sobriety tests including the HGN. Doug has taken the same NHTSA sponsored standardized field sobriety test certification course that any DWI task force officer or Texas Department of Public Safety Trooper completed.

2. The One Leg Stand and Walk and Turn tests.
Field sobriety tests are designed to test your abilities not those of someone else. Everyone is different and has distinct physical and mental abilities. Often times the field sobriety tests are not applied fairly.

People who are overweight may have difficulty standing on one leg or walking heel to toe. People with medical problems such as inner ear problems or older citizens may have difficulty balancing. People who have had a limited education may have difficulty counting in thousands. There are many reasons why people do poorly on the field sobriety tests that have nothing to do with alcohol consumption.

By showing the jury why his client may have had difficulty doing the field sobriety tests, Doug fights to eliminate alcohol as a factor in marginal Standardized Field Sobriety Testing.

Doug Atkinson has successfully convinced jurors that the tests were not fairly applied to his clients, conducted incorrectly, conducted unfairly, and therefore not reliable resulting in NOT GUILTY verdicts.

3. Attacking the refusal to conduct field sobriety tests.

You are not required to give evidence against yourself. The fact that you refused to perform the field sobriety tests does not mean that you are intoxicated. There are many reasons people refuse such tests such as fear, nervousness, lack of coordination, weight, injuries, inner ear problems, or other medical problems. The fact that you refused to do the tests can be used in your favor or could harm your case.  Contact Doug to discuss your DWI case today.

4. Attacking the blood test.
A blood test must be conducted under the strict rules of the Texas Transportation Code. Doug Atkinson has tried and won a blood test case with a high blood alcohol content to a jury. Doug will look at the facts of your case and find legal reasons to keep the test results out of court, explain how police errors can invalidate blood results, or the problems with extrapolation of blood results from the time of the blood test to the time of your driving.

5. Attacking the breath test.
Doug Atkinson has successfully tried and won breath test cases with high breath alcohol content. Doug will look at the facts of your case and find legal reasons to keep the breath test results out of court.

One of the many effective attacks is that the machine did not test the blood alcohol content at the time of driving. After the officer conducts field sobriety tests, arrests you, reads the Miranda warnings, meets with the tow truck operators, inventories the vehicle, reads the breath/blood test warnings, and drives to the jail it can be an hour or much, much longer before the test is performed. If the test was not conducted until much later it makes it difficult for the prosecution to prove that you had a 0.08 BAC or higher at the time of driving.

If the officer failed to question you as to when your last drink was, how much did you drink, when did you last eat, what did you eat, then the breath test technical supervisor will not be able to extrapolate the BAC results to the time of driving.

If the officer did not read the DIC 24 warnings to you before asking you to submit to the taking of the specimen then the tests may be thrown out of court.

If the officer compelled you to take the test in some way the test can be thrown out of court.

Another defense is to convince the jury to disregard the breath test results due to the inaccuracy of the breathalyzer machine. For instance:

  • The machine is only periodically checked for proper function and accuracy.
  • The machine tests itself to determine if is malfunctioning.
  • The machine is not required to perform perfectly by law.
  • The machine has a rate of error of 0.02.
  • The machine may be contaminated by previous users.
  • The machine is not warrantied by the manufacturer to read accurately.
  • The machine assumes everyone tested will have the same blood/breath ratio.
  • A fever may cause the machine to read higher.
  • Some substances in your body may cause the machine to read incorrectly.
  • The machine was not operated by a certified operator.

6. Attacking the refusal to conduct a blood or breath test.
Your refusal to take either a blood or breath test can be used against you during your trial. Doug Atkinson has successfully defended numerous people who refused to take the blood or breath test. Doug has used several strategies to deflect a refusal from hurting his client. By focusing the jury on the field sobriety test results, attacking the machine, and emphasizing our fifth amendment rights, juries have found Doug’s clients innocent of DWI.

7. Attacking the stop.
Montgomery County Texas DWI Lawyer Doug Atkinson has gotten numerous cases thrown out of court after motion to suppress hearings where he proved that the officer did not have reasonable suspicion to make the stop. By suppressing the stop of your vehicle the DWI will be thrown out of court. For example:

Many officers will stop a citizen for weaving within a single lane. This is not a good stop. In order to qualify as the offense of “failure to maintain a single marked lane” the driver must have failed to drive within a single lane and do so unsafely.  There is voluminous caselaw developed and continuing to develop interpreting this type of stop.

Other drivers frequently call police to report a suspicious driver. If the officer does not independently observe a traffic offense or suspicious driving then the stop may be challenged. Further, if the caller was anonymous the stop may also be contested.

Officers often justify a stop by calling it a community caretaking stop. However, case law has provided very specific instances where such a stop is allowed. Very often, the officer cannot meet these guidelines and the stop can be suppressed.

8. The officer did not see you driving.
Sometimes an officer will be called to the scene of a car accident or pull up to a car stopped on the side of the road. When the officer arrives the driver may be out of the car. If there are no witnesses to testify that they saw that person driving the car and the person does not admit to driving the car then the officer cannot prove who drove the car. An element of DWI is that the person operated a motor vehicle. Without evidence that you were operating the car the case can be thrown out of court.

9. Cross examination of the officer.
A DWI case can be won solely on cross examination of the law enforcement officer. Doug Atkinson will question officers for hours if need be to get to the truth. Many times the officers testify to things they did not put in their report, or things that seem to contradict the offense report. Doug has gotten clients acquitted of DWI by showing that the officer is not truthful or was unfair to the citizen. Additionally, Doug will conduct ALR hearings which are imperative to the DWI trial. At the ALR hearing, the officer is being recorded and is under oath. Any testimony he gives at that hearing can be used against him during the jury trial. Many officers will contradict themselves or changes their testimony from the ALR hearing to the jury trial. By showing this to the jury, they will often find in favor of the citizen.

10. The officer has a poor employment record.
In many cases Doug Atkinson subpoenas the employment records of the arresting officer. These records may show that the officer has been disciplined at work for his behavior. This information can be used at trial to discredit the officer’s testimony.

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