“There’s no way to beat a DWI charge, is there?”
Sarah sat across from us, defeated. She’d been pulled over at a DWI checkpoint. She’d had three drinks at dinner. She performed field sobriety tests on the side of the highway. She blew a 0.09 on the breathalyzer—just over the legal limit of 0.08.
The officer’s dash cam recorded everything. The stop was legal. The tests were administered properly. The breathalyzer result put her over the limit.
She’d already talked to two other attorneys who told her the case was unwinnable. Both recommended pleading guilty and negotiating the best deal possible.
“Just take the probation offer,” one attorney said. “Fighting this will only make it worse.”
Sarah came to us as a last resort, expecting the same advice.
We reviewed her case file. We watched the videos. We analyzed the breathalyzer results. We researched the checkpoint’s legal basis. We investigated the officer’s training and certification.
And we found problems. Multiple problems. Problems that turned an “unwinnable” case into a case we could fight—and potentially win.
Six months later, Sarah’s DWI charge was dismissed.
Here’s what people need to understand: Not every DWI case can be won, but more DWI cases can be successfully defended than most people—and many attorneys—realize.
As former prosecutors who collectively handled thousands of DWI cases, we know how these cases are built, what makes them strong, and what makes them weak.
Let us explain when DWI cases can be beaten, what defenses actually work, and how to evaluate your chances.
The Truth About DWI Cases in Texas
Let’s start with reality: Texas takes DWI seriously. Very seriously.
The laws are harsh. Penalties are severe. Prosecutors are aggressive. And juries in Texas counties—especially Collin County and Dallas County—tend to be prosecution-friendly on DWI cases.
First-offense DWI is a Class B misdemeanor carrying:
- Up to 180 days in jail
- Fines up to $2,000
- Driver’s license suspension up to one year
- Required ignition interlock device
- DWI education classes
- Increased insurance rates
- A permanent criminal record
Second DWI is a Class A misdemeanor with increased penalties. Third DWI is a third-degree felony carrying 2-10 years in prison.
Add aggravating factors—high BAC, child passenger, accident, injury—and penalties increase dramatically.
These stakes make people terrified. They accept bad plea deals. They don’t explore defenses. They assume conviction is inevitable.
But here’s what we learned prosecuting hundreds of DWI cases: Many DWI cases have weaknesses. Many can be successfully defended. And even strong cases can sometimes be beaten or significantly reduced.
You need attorneys who know where to look for those weaknesses and how to exploit them.
When DWI Cases Can Be Won: The Defenses That Actually Work
DWI defense isn’t about tricks or technicalities. It’s about identifying genuine problems with the state’s case and holding prosecutors to their burden of proving guilt beyond a reasonable doubt.
Here are the defenses that actually work:
1. Illegal Traffic Stop
The most common and most effective DWI defense.
The Fourth Amendment requires police to have reasonable suspicion to stop your vehicle. They need specific, articulable facts suggesting you’ve violated traffic laws or are driving while impaired.
Valid reasons for stops include:
- Traffic violations (speeding, running red lights, failure to signal)
- Equipment violations (broken taillight, expired registration)
- Driving conduct suggesting impairment (weaving, erratic speed, near-collision)
Invalid reasons include:
- Hunches or general suspicion
- Being in a “high crime area”
- Leaving a bar or restaurant late at night
- Demographic profiling
- Anonymous tips without corroboration
If the stop was illegal, everything that followed—field sobriety tests, breathalyzer, blood test, your statements—gets suppressed. The case collapses.
We won Sarah’s case on this issue. The DWI checkpoint where she was stopped had legal problems. We filed a motion to suppress. The judge agreed. Evidence suppressed. Case dismissed.
2. Improper Field Sobriety Tests
Field sobriety tests are not scientific. They’re subjective observations that officers use to build probable cause for arrest.
The three standardized tests are:
- Horizontal Gaze Nystagmus (HGN): Officer watches your eyes for involuntary jerking
- Walk-and-Turn: Walking heel-to-toe in a straight line, turning, and walking back
- One-Leg Stand: Standing on one leg for 30 seconds
Problems we frequently find:
Improper Administration: Officers must follow NHTSA standardized protocols exactly. Deviations invalidate the results. We review videos and officer reports for protocol violations.
Medical Conditions: Inner ear problems, knee injuries, back problems, neurological conditions, and anxiety all affect test performance regardless of intoxication.
Environmental Factors: Uneven surfaces, poor lighting, traffic noise, weather conditions, and uncomfortable footwear all impact test results.
Officer Training: Officers must be properly trained and certified in SFST administration. We verify training and look for certification lapses.
Misinterpretation: Officers often misinterpret normal behaviors as “clues of intoxication.” We challenge their interpretations with expert testimony.
Field sobriety tests are designed to make sober people fail. We know how to expose their unreliability.
3. Breathalyzer Problems
Breath alcohol tests seem scientific and objective. They’re not. They’re machines operated by humans, and both make mistakes.
Common breathalyzer defenses:
Improper Calibration: Breathalyzers must be calibrated regularly according to manufacturer specifications. We subpoena calibration records and maintenance logs.
Operator Error: Officers must be certified to operate the specific breathalyzer model. We verify certifications and look for administration errors.
Mouth Alcohol: Breath tests measure alcohol in your breath, but they can’t distinguish between alcohol from your lungs (indicating blood alcohol) and alcohol from your mouth (from recent drinking, burping, vomiting, or dental work). Mouth alcohol causes falsely high readings.
Medical Conditions: Diabetes, acid reflux, and other conditions can cause falsely elevated readings.
Interfering Substances: Certain foods, medications, and substances can affect breathalyzer results.
Time Delay: Your BAC at the time of the test may be higher or lower than your BAC at the time of driving due to alcohol absorption rates. This creates “rising BAC” and “falling BAC” defenses.
Machine Malfunction: Breathalyzers malfunction. We review machine error logs and maintenance records.
We’ve successfully challenged breathalyzer results in dozens of cases by demonstrating these problems.
4. Blood Test Problems
Blood alcohol tests are more accurate than breath tests, but they’re not infallible.
Blood test defenses include:
Chain of Custody Issues: Blood samples must be properly collected, stored, transported, and tested. Any break in the chain of custody raises questions about contamination or misidentification.
Improper Collection: Blood must be drawn by qualified personnel using proper techniques. We review who drew the blood and how it was done.
Storage Issues: Blood samples must be refrigerated and preserved with specific additives. Improper storage causes fermentation, creating alcohol that wasn’t present when blood was drawn.
Lab Errors: Crime labs make mistakes. We review lab reports, analyst qualifications, and quality control records. We’ve found numerous lab errors over the years.
Warrant Issues: Police need a warrant to take your blood without consent. We challenge warrant validity and execution.
5. Rising Blood Alcohol
Your BAC continues rising for 30-90 minutes after your last drink as alcohol absorbs into your bloodstream.
This creates a powerful defense: Your BAC at the time of driving may have been below 0.08 even though it was above 0.08 when tested an hour later.
We use expert witnesses—toxicologists and pharmacologists—to demonstrate this scientifically. We present evidence about when you stopped drinking, when you were pulled over, when you were tested, and calculate your BAC at the time of driving.
This defense works in cases where:
- You were pulled over shortly after leaving a bar or restaurant
- There was significant delay between stop and testing
- Your BAC was only slightly over 0.08 (suggesting it was below while driving)
6. Not Operating the Vehicle
In Texas, you commit DWI by operating a motor vehicle while intoxicated. “Operating” requires more than just being in the vehicle.
We’ve successfully defended cases where:
- Client was sleeping in parked car with engine off
- Client was sitting in passenger seat
- Client was outside the vehicle when police arrived
- No witnesses saw client driving
Prosecutors must prove beyond a reasonable doubt that you were actually operating the vehicle while intoxicated. Sometimes they can’t.
7. No Probable Cause for Arrest
Even if the stop was legal, officers need probable cause to arrest you for DWI.
Probable cause requires more than suspicion. Officers need specific facts suggesting you’re intoxicated: odor of alcohol, slurred speech, bloodshot eyes, failed field sobriety tests, admission of drinking.
We challenge arrests when:
- Officer arrested based on alcohol odor alone
- Field sobriety test performance was actually good
- Officer mischaracterized normal behaviors as intoxication signs
- Observations were consistent with fatigue, medical conditions, or nervousness
8. Challenging Officer Testimony
Police reports and testimony aren’t gospel. Officers make mistakes, exaggerate, and sometimes lie.
We challenge officer credibility by:
Demonstrating inconsistencies between police reports, dash cam footage, body cam footage, and courtroom testimony.
Exposing training deficiencies in SFST administration, breathalyzer operation, or DWI investigation.
Impeaching with prior cases where the officer’s testimony was found unreliable.
Cross-examining on report quality, showing sloppy or incomplete investigation.
We’ve cross-examined thousands of officers. We know how to expose weaknesses.
When DWI Cases Can’t Be Won: The Reality Check
We need to be honest: Not every DWI case can be won.
Some cases are too strong to beat at trial. In those situations, our job becomes minimizing consequences through negotiation, not fighting unwinnable battles.
Here’s when DWI cases are very difficult to win:
High BAC with reliable testing: If your breathalyzer or blood test showed 0.15 or higher, and testing was done properly, this is hard to overcome.
Video evidence showing clear intoxication: Dash cam or body cam showing you stumbling, slurring speech, failing tests badly, and admitting to drinking.
Accident with injuries: Prosecutors and juries are less sympathetic when someone was hurt, even if other defenses exist.
Strong officer testimony with no video: When there’s no video contradicting the officer’s version and their testimony is consistent and credible.
Your admissions: If you admitted to drinking heavily, admitted to driving, and made no attempt to assert your rights.
Prior DWI convictions: Repeat offenders face harsher scrutiny and less jury sympathy.
Even in strong cases, though, we can often negotiate better outcomes than defendants would get on their own: reduced charges, lighter sentences, deferred adjudication, or alternatives to jail.
The Trial Process: What Happens If You Fight Your DWI
If we go to trial on your DWI, here’s what happens:
Pre-Trial Motions: We file motions to suppress evidence (illegal stop, improper testing), dismiss charges (lack of probable cause), or compel discovery. Winning suppression motions can end the case before trial.
Jury Selection: We select jurors carefully, looking for people who understand reasonable doubt, don’t automatically believe police, and can be fair despite DWI’s stigma.
State’s Case: Prosecutor presents the arresting officer, video evidence, breathalyzer/blood results, and any other witnesses. We cross-examine aggressively, exposing weaknesses and inconsistencies.
Defense Case: We may present expert witnesses (toxicologists, accident reconstruction specialists), medical records explaining test performance, or witnesses contradicting the state’s version.
Closing Arguments: We argue that the state failed to prove guilt beyond a reasonable doubt. We highlight weaknesses, inconsistencies, and alternative explanations.
Jury Deliberation: The jury decides: guilty or not guilty. Conviction requires unanimous verdict. One holdout means mistrial.
Sentencing (if convicted): If convicted, we present mitigation evidence and argue for probation rather than jail.
Trials are risky. But when the case has real weaknesses and the plea offer is unfavorable, trial is sometimes the right call.
Why Our Experience as Prosecutors Matters in DWI Defense
As former prosecutors, we handled hundreds of DWI cases from the other side.
We know exactly how prosecutors build these cases, what they consider weaknesses, and what they’re afraid of at trial.
We know which officers in Collin County and Dallas County are well-trained and credible versus which ones cut corners and make mistakes.
We know which crime labs have had problems and which lab analysts are reliable.
We know which judges grant suppression motions and which ones rubber-stamp everything police do.
We know which prosecutors will negotiate reasonably and which ones must be forced to trial.
And we’ve actually tried these cases—over 100 jury trials each. We’re not afraid of courtrooms. We know how to cross-examine officers, present expert witnesses, and argue reasonable doubt to juries.
That experience translates into better outcomes for clients.
Common Mistakes That Hurt Your DWI Defense
People facing DWI charges make these mistakes that destroy their cases:
Talking to police: Anything you say will be used against you. Exercise your right to remain silent. Be polite but firm: “I’m not answering questions without my attorney.”
Performing field sobriety tests: You can refuse these tests in Texas without penalty. Performing them only gives police more evidence.
Waiting to hire an attorney: Evidence disappears. Videos get deleted. The ALR hearing (challenging license suspension) has tight deadlines. Hire an attorney immediately.
Hiring attorneys who don’t actually try cases: Many DWI attorneys never go to trial. They plead everything out. Prosecutors know this and offer worse deals because there’s no trial risk.
Accepting the first plea offer: Initial offers are rarely the best offers. Experienced attorneys negotiate better terms.
Not investigating the case thoroughly: Reviewing police reports isn’t enough. We subpoena dispatch recordings, calibration records, officer training files, lab documents—everything.
The ALR Hearing: Protecting Your License
Separate from the criminal case, DWI arrests trigger administrative license suspension through the Administrative License Revocation (ALR) program.
You have 15 days from arrest to request an ALR hearing. If you don’t request one, your license is automatically suspended.
The ALR hearing is your opportunity to challenge license suspension by arguing:
- The stop was illegal
- The arrest lacked probable cause
- The breathalyzer test was improperly administered
- You were not intoxicated
Winning the ALR hearing means keeping your license even while the criminal case is pending. Losing means license suspension: 90 days for first offense, longer for repeat offenses.
We handle ALR hearings for all DWI clients. This is often our first opportunity to cross-examine the officer and preview their testimony before the criminal trial.
This February: Know Your Options Before You Plead Guilty
If you’ve been arrested for DWI, you’re probably scared. The charge seems overwhelming. Conviction seems inevitable.
But you have options. Your case may have defenses you don’t know about. The stop might have been illegal. The tests might have been improperly administered. The evidence might be weaker than you think.
Don’t plead guilty without exploring every possible defense.
Get Experienced Trial Attorneys Who Actually Fight DWI Cases
At Lewis & Ashworth, we’re former prosecutors who handled thousands of DWI cases from both sides.
We know how to identify weaknesses in DWI cases. We know which defenses work and which ones don’t. We know when to fight and when to negotiate.
Most importantly: We actually try cases. We’ve each tried over 100 jury trials. We’re not afraid to fight when fighting makes sense.
But we’re also realistic. When cases can’t be won at trial, we negotiate the best possible outcomes through our relationships and experience with local prosecutors.
Schedule a free consultation to discuss your DWI case. We’ll review the facts, evaluate potential defenses, and give you honest advice about your options.
Don’t plead guilty without exploring every defense. Your future is worth fighting for.
Two former prosecutors. Nearly 40 years of criminal law experience combined. Over 200 jury trials between us.
Lewis & Ashworth, PLLC
Criminal Defense Attorneys
Plano, Texas
Serving the Dallas-Fort Worth Metroplex