Administration: Demonstrate that a blood test or breathalyzer was improperly administered.
Qualifications: Challenging a State’s witness’ qualifications or expertise.
Prior record: Challenge whether at least two prior DWI convictions were proven beyond a reasonable doubt during the guilt-innocence phase of a felony DWI trial. In Oliva v. State of Texas, the court considered whether a prior conviction was an actual element of the offense, which must be proven beyond a reasonable double at trial, or whether it is merely a punishment enhancement that can be introduced during the sentencing phase. In 2018, the Court of Criminal Appeals of Texas overturned the lower court, ruling that one past DWI conviction is merely an enhancing factor to be introduced during the sentencing phase. It is not an element of a Class A misdemeanor DWI offense, and therefore, does not need to be proven beyond a reasonable doubt during trial.
Validity: Challenge validity of the warrant used to draw Defendant’s blood sample. When officers need a warrant to obtain a blood specimen, there may be crucial errors in the affidavits officers use to obtain them. Affidavit errors occurred long before computers, but occasionally blood evidence is thrown out because mistakes of modern technology, like “copy-and-paste errors.”Especially where the state relies heavily on blood sample evidence to make their case, when it is thrown out, the case could be dismissed altogether because the state cannot prove the elements of the crime.
Unreliability: Roadside sobriety tests that were used by the police officer are unreliable or unproven.
Misconduct: Improper police conduct, such as lack of probable cause, and mishandling evidence.
Evidence: Motion to dismiss or Motion for directed verdict due to insufficient evidence as to one or more elements of the DWI offense.
On the other hand, the Court ruled that the existence of two prior convictions is indeed an element of a 3rd Offense DWI, which is a Felony.
In a felony DWI case, the fact of two prior convictions is not just a punishment enhancement, but an element of the offense that must be sufficiently proven by the State.
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About the Author: Andrew Williams I am a criminal defense lawyer with over 20 years experience defending people accused of wrongdoing. I am board certified by the Texas Board of Legal Specialization. Only ten percent of attorneys in Texas are board certified in their respective field. I practice criminal law exclusively in both state and federal court including appeals of criminal cases.