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DWI Accidents in Texas: Criminal Defense after Drunk Driving Crash Charges

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Defense Challenges to Improper or Insufficient DWI Arrests and Prosecutions

In Texas, in any motor vehicle accident, car crash, or traffic collision where a driver is arrested and charged with driving while intoxicated (“DWI”), he or she faces serious criminal consequences under Texas law.   When is a driver considered to be legally intoxicated and vulnerable to be charged with illegally driving drunk?  The Texas Legislature has delineated exactly what constitutes the crime of drunk driving, or DWI, in the Lone Star State.

By definition, Texas Penal Code §§49.01(2), 49.04 defines this to be a crime where:  (1) “[a] person commits an offense if the person is intoxicated while operating a motor vehicle in a public place,” with (2) “intoxication” defined as: “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body;  or having an alcohol concentration of 0.08 or more.”

Driving with someone under the age of 15 years old is a separate crime.  Texas Penal Code §49.045.  When someone is seriously injured in the crash, charges can be brought for intoxication assault under Texas Penal Code §49.07.  If someone dies from injuries sustained in the accident, then the driver can be charged with intoxication manslaughter pursuant to Texas Penal Code §49.08.

DWI convictions can result in serious prison time.  If someone was seriously injured or died in the accident or from injuries sustained in the crash, the convicted DWI driver may be sentenced to up to 20 years’ incarceration in a Texas state prison.  Drunk driving arrests can also result in monetary fines (up to $10,000) as well as license suspension.  Texas Penal Code §49.09.

Police at the Scene of the Accident: Testing for DWI Intoxication

Anywhere in the State of Texas, the DWI Accident case begins with the incident itself, where there is a collision or accident involving one or more motor vehicles.  Law enforcement will arrive on the accident scene to investigate and report the crash.

When intoxication is suspected by the police officer (or sheriff’s deputy, highway patrolman, etc.), he/she knows to obtain blood evidence from the driver.  This is necessary in order to substantiate the driver has 0.08% or more blood alcohol in his system as intoxication is defined in Texas Penal Code §49.01(2) (see above).

Almost always, the police officer will at first ask to obtain blood evidence in a DWI accident case.  If the suspected drunk driver doesn’t consent to it, the police officer will get a search warrant to get the blood.

Field sobriety tests may be performed at the scene of the DWI accident as well.  For more on field sobriety tests, read our earlier discussion: Arrested after Police Field Drug Test?  Fight Back: These Things are Notoriously Wrong.

Prosecution of the DWI Case: Two Common Weaknesses in the State’s Case

If the police officer gathers facts that in his opinion support the driver’s illegal intoxication under Texas law, then an arrest will be made and charges asserted against the driver for driving while intoxicated in violation of Texas Penal Code §49.01 et seq.

The driver then becomes a defendant in the criminal justice system.  At this juncture, a Texas criminal defense lawyer with experience in advocating DWI cases (especially those involving accident victims who have been seriously injured or killed in the crash) can be hired to advocate on the accused driver’s behalf.

From my past experience in complex DWI Accident defense matters, I have found that these cases are never cut and dry, despite the stigma and shame that surround any alleged drunk driving crash where people have been harmed or have perished.  It’s not a slam dunk for the prosecution.

In fact, there are usually several weak spots to the state’s case in DWI Accident cases.  Here, I want to focus on two of them:  (1) the testing evidence to prove up intoxication; and (2) “wheeling” the defendant to substantiate operation of the motor vehicle.

1.  Challenging Evidence of Intoxication: Suppression of the Blood Test

When I represent someone facing DWI Accident charges, more likely than not I will file a Motion to Suppress the Blood Test.  Seeking to suppress the blood test in drunk driving accident cases to get the BAC (blood alcohol count) evidence thrown out happens so often in my defense of these matters, it’s almost routine.

A.  Challenging the Arrest at the ALR Hearing and TCCP 14.01

The first step in this defense process is to establish at the ALR hearing (administrative hearing on driver’s license suspension) that the arrest was actually an illegal arrest. This can be surprisingly easy to do in DWI Accident cases.  Here’s why.

The police officer who was at the scene of the DWI Accident will testify at the ALR hearing.  Defense questioning of that arresting officer will include asking questions based upon Texas Code of Criminal Procedure 14.01 (“TCCP 14.01”), which provides (emphasis added):

(a)  A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace;

(b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.

This statute states that a police officer in Texas can legally arrest someone for a misdemeanor case (other than family violence) only if the officer personally observed the offense.  In the case of a DWI accident, the officer will be arriving at the crash scene many minutes or even an hour after the accident occurred.  By that time, the driver (now defendant and client) will NOT be operating a motor vehicle.  Therefore, the police officer cannot say under oath that he witnessed my client commit the offense of DWI, because he/she was not present at the time of the crash itself.

If the police officer confirms under oath that an arrest was made based solely upon laws against driving while intoxicated (DWI), then the record has been built to thwart the prosecution’s case.

The court reporter can be requested to provide the transcript of the officer’s sworn testimony at the ALR hearing.  This takes the defense to the second prong of challenging the intoxication element of the state’s case.

B.  Motion to Suppress and Segura

Once the police officer has been trapped into testifying at the ALR hearing that he/she arrested the accused driver (now defendant and client) solely for DWI, court case precedent comes into play with the filing a formal Motion to Suppress Evidence in the county criminal court and requesting a suppression hearing.

Specifically, an argument can be advanced based upon Segura v. State, 826 SW2d 178 (Tex.App. Dallas 1992, pet ref’d), where the Segura opinion explains the lack of probable cause for the arrest:

Because the arresting officer did not personally observe appellant driving his pickup truck, the officer had no authority to arrest appellant for DWI pursuant to article 14.01 of the Texas Code of Criminal Procedure. See Warrick v. State, 634 S.W.2d 707, 709 (Tex.Crim.App.1982)Collins v. State, 795 S.W.2d 777, 778 n. 1 (Tex.App.—Austin 1990, no pet). Tex.Code Crim.Proc.Ann. art. 14.01 (Vernon 1977).

Pursuant to Segura, for the prosecution now to show a lawful arrest in a DWI Accident case, the state must be able to prove that the arrest was made for something other than DWI.  The most common example would be Public Intoxication as defined in Texas Penal Code §49.02.

It is easy enough for police officers on the DWI Accident scene to prove up Public Intoxication (“PI”).  Most of the time, they don’t bother.   Once the police officer has testified at the ALR hearing that he/she made an arrest solely upon the state laws defining DWI, his/her sworn testimony is of record.

When the officer is called to the witness stand at the Suppression Hearing, that same defense questioning will occur.  Did he/she arrest solely based upon the DWI laws?  Once they have confirmed their earlier testimony from the ALR hearing, then the defense can ask for the blood test results to be excluded.  (And if they waiver, the ALR transcription of their testimony can always be referenced.)

Under Segura, the judge will be required to grant the Defendant’s Motion to Suppress Evidence and toss out the blood test (BAC) result.  Why?  Evidence seized in violation of the Constitution or laws of the State of Texas or the United States is not admissible against the accused.  Texas Code of Criminal Procedure art. 38.23; Article 1, § 9 of the Texas Constitution; 4th Amendment to the United States Constitution.

If the blood test results are no longer available for the prosecutor to use at any trial of the DWI Accident charges, the state’s case typically falls apart.  There is not legal proof to establish any violation of Texas Penal Code §49.01 et seq. by the driver. The DWI Accident case gets dismissed.

2.  Challenging Evidence of Driving: State’s Legal Proof of Operating a Motor Vehicle

Another common challenge to DWI Accident evidence involves “wheeling” the defendant.  To prove up its case, the state must establish with admissible evidence that the defendant driver was actually operating a motor vehicle while intoxicated at the time of the accident or crash.

Of course, as discussed above, in a DWI Accident case the officer is not there to see actual incident and is not an eyewitness to the accident itself.  How can he/she testify as to the defendant’s “operating” the vehicle after the fact?

Legally, “operating” a motor vehicle has not been defined by statute.  Texas courts have held that a person “operates” a vehicle when “the totality of the circumstances demonstrate[s] that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.” Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012).

An astute police officer on the scene will ask the DWI suspect whether they drove the car, or maybe just ask the simple question “what happened?”  If the suspect admits to driving and he/she was not already in custody, then that statement can be used against the suspect at trial as an admission to prove “operation” as an element of the DWI charge.

Key here for the defense: when this statement was made.  It is possible to challenge the admissibility of any “operating” admission under Texas Code of Criminal Procedure art. 38.22, which requires any statement in custody (1) to be preceded by the statutory warning; and (2) to have a recording of the statement.

As Kirsch explains, the prosecutor also may be able to introduce other evidence to prove “operating” of the vehicle by the defendant: circumstantial evidence can be used.  For example, airbag residue on the suspect’s skin; bodily injuries sustained by the suspect; or blood evidence linking the suspect to the act of driving can also be used.

Of course, circumstantial evidence is usually weaker than a direct admission by the suspect.  The defense will be able to challenge each individual piece of circumstantial evidence based upon its own independent weaknesses.

Need for Strong Defense against DWI Accident Charges in Texas

In Texas, the laws against Driving While Intoxicated can change over time, and new DWI case law precedent is being established each year.  Technologies to test for blood alcohol levels are advancing, as well.  For instance, see:

Police and prosecutors have become more and more aggressive in pursuing charges for DWI Arrest charges involving assault or manslaughter, as well.  Consider the following:

Anyone facing serious drunk driving charges involving an accident where someone was seriously injured or killed in the crash is wise to seek the assistance of an experienced and zealous criminal defense attorney with a background of complex DWI Accident representations.  The very act of filing a case against someone for drunk driving, much less one involving a serious car crash or auto accident where people got hurt, can be life-altering.  Reputations can be harmed, lives can be changed and the longer the case is active, the more both the accused and his / her loved ones can suffer.


For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,”10 QUESTIONS TO ASK BEFORE YOU HIRE A DALLAS CRIMINAL DEFENSE LAWYER.”


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