How Does an Expert DWI Attorney Get My Case Dismissed?

Dismissal Ends Your Case Without a Full Trial

The first and sometimes the most important question an experienced DWI Attorney asks when seeking dismissal of your DWI case is “why your vehicle was stopped?” Police officers across the state of Texas can make lawful temporary detentions of you and your vehicle for any of the following reasons:

(1) A “Consensual Encounter”

(2)” reasonable suspicion.”

(3) “Probable Cause” and

(4) “Community Caretaking.”

But Police MUST offer sufficient proof that one of these existed to avoid dismissal of your case. These four reasons are explained below so you can determine which ones exist in your case and, most importantly, are they based on weak proof? An expert DWI Attorney knows how to find the weakness in the State’s case to secure dismissal of your DWI and license suspension cases.

Reasonable Suspicion

Most dismissals occur because Police get too eager and stop your vehicle without “reasonable suspicion” of wrongdoing. What happens if your encounter with the police is not voluntary? An officer pulls behind you, lights up his red and blues, and orders you to the side of the road? You have been temporarily detained by law enforcement and are not free to leave; this is called a “Terry Stop”. Now the question for your DWI defense attorney becomes, was this stop legally justified?

For an officer to temporarily detain you, they must have”reasonable suspicion” a crime has been, is currently, or soon will be committed. “reasonable suspicion” is a set of specific, articulable facts. It is more than a hunch or guess, but less than “Probable Cause.” In fact,”reasonable suspicion” is one of the lowest standards of proof in the DWI legal system. As such, it does not require proof that any unlawful conduct occurred before an officer can temporarily detain you. Out of the ordinary actions that are simply related to a crime may be sufficient. For example, you may be stopped for weaving within your lane at 2 a.m., just after leaving a bar. None of those things themselves are against the law, but all together could give an officer’s”reasonable suspicion” that you are driving while intoxicated and stop you from investigating. In fact, some judges find reasonable suspicion in weaving alone. The standard is not high, but sometimes we can persuade a judge that the proof is NOT adequate to justify the detention.

Because traffic offenses are crimes in the state of Texas, you can be legally detained under the suspicion of violating just one. There are hundreds, even thousands, of traffic offense for which you can be stopped. For example, an officer observes your vehicle passing him traveling at a high rate of speed. Just as he looks down at his speedometer and sees his vehicle is going 49 mph in a 50 mph zone, you speed by him. He doesn’t have to confirm your speed with his radar or laser (LIDAR) equipment. Based upon his training and experience [common sense], he “suspects” that you are traveling over the speed limit. That is enough for a lawful temporary legal detention.

Is it possible for your temporary detention by police to be illegal? Absolutely!

An experienced DWI defense attorney in your local community can file a Motion to Suppress and fight the legality of your stop. A Motion to Suppress asks the court presiding over your case to review the facts surrounding your detention and rule on its validity. The presiding judge will look at all of the facts surrounding your temporary detention and decide whether the officer’s actions were reasonable; this is called reviewing the totality of the circumstances. It is important to note that the judge may only consider facts the officer knew at the time of your stop and not facts obtained later down the road.

If your Motion to Suppress is granted, then all of the evidence obtained after your stop will be inadmissible in court. Though the State had the right to appeal this decision to a higher court and upheld your Motion to Suppress will dispose of your case in its entirety, resulting in a dismissal and expunction, which removes the arrest from your public and DWI record. If the Motion to Suppress is denied, then your case will proceed as usual unless a decision is made to appeal the court’s decision to the court of appeals.

However, even if you have been legal, temporarily detained, a situation can escalate, with the passage of time, and require an officer to have “Probable Cause” to continue an investigation.

“Probable Cause”

An arrest must be based on “Probable Cause”, so dismissal results if this is missing from the evidence. The purpose of their questions and Standard Field Sobriety Tests (SFST) is to develop clear “probable cause” to arrest you.

Once you have been legally detained an officer can request several things of you. First, they can ask a series of questions, which may include, but are not limited to, the following:

(1) Where are you coming from?

(2) Where are you headed?

(3) Have had anything to drink?

(4) How many drinks?

(5) What time was your last drink?

Second, they request/demand that you to complete several tasks:

(1) Ask you to provide your license or another form of identification to run you for outstanding warrants

(2) Request you to submit your license, insurance, and registration, and

(3) Require you exit the vehicle.

At this point in an investigation, the officer is building a case against you without warning you of your rights. Although technically you can refuse to do these tests, few citizens know they have a right to refuse, so they do the tests. Everything you do or say at this stage of the investigation will be used against you in court.

The officer asks you these questions to gather clues that you have been drinking. Officers observe

  • red bloodshot,
  • watery eyes;
  • an odor of an alcoholic beverage;
  • slurred speech; or
  • if a person fumbles with their wallet or has slow movements.

Again, there might be perfectly valid reasons for each of these that have nothing to do with alcohol, yet if an officer observes any of these things, he will likely ask if

  • you had had anything to drink
  • when your last drink was,
  • And then you are instructed to step outside of the vehicle for further investigation.

It is important to note that while you do have to identify yourself with your license and insurance card, you are not required to speak to the officer or answer any further questions.

Sometimes an officer’s observations of a person’s behavior, driving or otherwise, leads to an opinion that is more than “reasonable suspicion.” When an officer’s logical investigation discovers facts that would lead a reasonably intelligent and prudent person to believe you have committed a crime they may arrest you for further investigation. This is called “Probable Cause” standard, and it is the standard used to justify an arrest.

“Probable Cause” is a higher standard of proof than”reasonable suspicion” and, therefore, requires additional evidence.

Is it possible for you to arrest without either “reasonable suspicion” or “Probable Cause”? Of course! An experienced DWI defense attorney can file a Motion to Suppress and fight the legality of the arrest. This motion follows the same procedure as the one previously discussed for challenging”reasonable suspicion” and just like before the state only has to prove”reasonable suspicion” for a temporary detention. “Probable Cause” is a higher standard of proof than”reasonable suspicion” and would require additional evidence for an arrest, but not for a stop.

Lawful Stops with a warrant

Can you be stopped for no traffic violation at all? Yes. Even if you have not broken a single traffic violation or engaged in suspicious behavior, you may be still be stopped for an outstanding warrant or “reasonable suspicion” of drunken driving, even if your actions are not actual offenses.

If there is a warrant out for your arrest-such as a traffic ticket- you may be legally detained and arrested at any point, whether you are driving in your car or walking around outside. When driving, officers may run the license plate of any vehicle you are operating to check for outstanding warrants. If their in-car system returns with a hit on your license plate, they will confirm the warrant with police dispatch. In fact, if there is an outstanding warrant for the registered driver of that vehicle, and you, as the driver, resemble the description, you may be stopped whether you have an outstanding warrant or not.

Being stopped for an outstanding warrant that does not necessarily mean you will be immediately arrested. Once legally detained, an officer may engage in any investigation to develop “Probable Cause” for any offense he or she has a suspicion you have committed.

Because suspects of Driving While Intoxicated cases are stopped while operating a motor vehicle, it is rare for an outstanding warrant to come into play. However, if have already parked and exited your car, police may use any existing warrant to detain you and investigate for signs of intoxication.

“Community Caretaking”

The most misunderstood reason for detention is called “community caretaking”. A variation on the exigent circumstances doctrine, the “Community Caretaking” exception allows an officer to stop a person when the officer reasonably believes the person needs the officer’s assistance. This exception recognizes that “police officers do much more than enforcing the law, conduct investigations, and gather evidence to be used in DWI proceedings. Part of their job is to investigate vehicle collisions—where there is often no claim of DWI liability—to direct traffic and to perform other duties that can be best described as ‘”Community Caretaking” functions.’”

An officer does not need any basis for believing the suspect is engaging or about to engage in any DWI activity under the “Community Caretaking” stop. Instead, the circumstances create a duty for the officer to protect the welfare of a person or the community. The potential for harm must require immediate, warrant less action.

The Court of DWI Appeals has held that a police officer may stop and assist an individual whom a reasonable person, given all of the circumstances, would believe needs help. In determining whether a police officer acted reasonably in stopping an individual to decide if he needs assistance, courts consider the following factors:

• the nature and level of the distress exhibited by the individual;

• the location of the individual;

• whether or not the individual was alone and had access to assistance independent of that offered by the officer; and

• to what extent the individual, if not assisted, presented a danger to himself or others.

A “Community Caretaking” stop does not include the right to search incident to the stop. Whether an officer may search for weapons will depend on whether she has an independent reason to believe the suspect is armed. Wright involved an officer-citizen encounter on public property. The Wright court suggested that the “Community Caretaking” exception might also apply to private property (including homes), but “only in the most unusual circumstances.”

The Court of DWI Appeals and the U.S. Supreme Court both held that the “Community Caretaking” stop could apply to both passengers and drivers. Courts have indicated that passenger distress signals less of a need for law enforcement intervention. If the driver is OK, then the driver can provide the necessary assistance by driving to a hospital or other care. Several courts have addressed the question of when weaving in a lane and drifting out of a lane of traffic is enough to give rise to”reasonable suspicion” or justify a “Community Caretaking” stop and have concluded:

• driver distress is a more compelling justification than passenger distress;

• more drivers on the road in potential danger present a more compelling justification for a “Community Caretaking” stop; and

• the elements of the crime of weaving are different from weaving as an element of a decision to pull over a driver based on “Community Caretaking” or”reasonable suspicion” of DWI

One other note about the “Community Caretaking” exception: This is the only exception to the warrant requirement where an officer’s subjective motivation is significant. An officer must be motivated by safety or concern for someone’s well-being. The officer’s belief must also be reasonable.

The prerequisites that establish “”Community Caretaking”” as an exception to the requirement for a search warrant include:

• circumstances create a duty for the peace officer to protect the welfare of an individual or the community,

• the potential for harm requires immediate action, and

• the officer has insufficient information to prepare a valid warrant affidavit.

One problem that arises is when an officer has a “hunch” that something is wrong and uses it as an excuse to detain the driver. Judges find it difficult to rule against an officer genuinely concerned about a citizen that might be in danger, injured or threatened-even if it is only a hunch. The arrest is more easily justified if the driver seems to be having a heart attack or other illness that impairs their ability to drive or care for themselves.

Consensual (Voluntary) Encounter:

A voluntary encounter occurs when a police officer approaches you in a public place, whether in your vehicle or not, to ask you questions. When you stop your car so that anyone can walk up and talk to you, a voluntary encounter occurs. Unless the officer requires you to answer his or her questions, you are not protected under the Fourth Amendment against unreasonable search or seizure. When you are not protected under the Fourth Amendment, an officer can ask you anything they want for as long as they want because, as far as the law is concerned, you are not detained. One common circumstance is when an officer walks up to the side of your car. Politely, you open the window and thus enter into a “voluntary encounter” without realizing it. Maybe, being distracted and not so polite to the officer is a safer strategy. If he knocks on the window or otherwise demands that it be lowered, you are not submitting to a “voluntary” encounter. These can be close questions of law that demand an experienced DWI attorney to analyze.

What does that mean to engage in a “voluntary encounter”? It means you are free to not be a voluntary participant, ignore their questions, free to walk away, and free drive away. How do you know whether you are engaging in a voluntary encounter or are legally detained? A few simple questions directed at the officer will give you the answer. First ask, “Do I have to answer your questions?” If not, “Am I free to leave?” Some good indicators you are not free to leave are the use of an officer’s overhead lights or siren or physical indication by the officer for you to pull over or stop. If you are free to leave, then leave and you will be stopped. No officer will allow anyone suspected of driving with some alcohol, but the 2d stop will clearly be one to challenge. Then, you may have a better shot at dismissal. Once you do, an officer must come up with a valid legal reason to stop you and require your compliance.

If you choose to stay and answer an officer’s questions, you may be creating”reasonable suspicion” to legally detain you. For example, if an officer engages you in a voluntary encounter by asking

  • your name and where you are headed,
  • he or she may hear slurred speech (a sign of intoxication) or
  • smell an odor of marijuana (a sign of marijuana possession) or
  • see an open container of alcohol in your vehicle (a DWI offense).

Now, they have”reasonable suspicion”to detain you further. Before you think you have nothing to hide, remember there have been passengers in your vehicle, other drivers, or previous owners who may have left something behind that could now get you in trouble. There are endless possibilities; the only way to avoid them all is to exercise your right to go.


These are elaborate legal theories and law, so you need to know how these apply to your case. Only an experienced DWI attorney can analyze your situation to figure how these rules apply. Most importantly, an expert DWI attorney can find the mistakes that police make, which might result in a winning case. Don’t take the chance that your case is a winner. Consult an experienced DWI attorney today!