Common Challenges (DWI Challenges)

Initial Encounter

1. Bad stop
   1. No RAS
   2. Unconstitutional checkpoint
2. Accident / Asleep at wheel – Officer didn’t observe you driving
   1. State can only prove driving with circumstantial evidence
   2. If you are sleeping in a vehicle
   3. Or if you were involved in a wreck outside the presence of any witnesses
3. Public Street/Highway/PVA
   1. Private road?
   2. Driveway?
   3. Field?
4. Unreasonably long detention
   1. Rodriguez
   2. RAS to pull out of vehicle for SFSTs

Roadside Investigation

1. Unlawful Arrest
   1. Insufficient evidence of impairment to establish PC
   2. No SFSTs administered
   3. SFSTs incorrectly administered
      1. Officer not properly trained
      2. Officer training outdated
      3. Officer in need of refresher course
      4. Weather affected test
      5. Subject too old or too obese
   4. Officer not qualified to testify about SFSTs
   5. Medical issues mimicking impairing
   6. Driving while fatigued
   7. Portable Breath Test not properly administered/calibrated

Post-Arrest

1. Lack of reasonable grounds to request breath test
2. Issues with administration of breath test
   1. Officer did not properly advise driver of his or her rights
   2. Officer not did not follow rules and methods
   3. Suspect was not allowed to contact witness/attorney
   4. Witness/attorney called by defendant not allowed access to defendant
   5. Defendant was not allowed access to cell phone to retrieve contact information
3. Issues with EC/IR-II
   1. There were technical issues with the machine
   2. Machine was not calibrated
   3. A new test tube was not used
   4. There were environmental factors that affected the machine
   5. Had an object in mouth during test
   6. Consumed something during observation period
   7. Medical conditions
      1. Asthma
      2. GERD
4. Blood test
   1. Was blood lawfully obtained?
      1. Consent
      2. Exigent Circumstances
      3. Search warrant
   2. Were you ready your implied consent rights?
   3. Were you allowed to call an attorney or witness?
   4. Was the witness given enough time to get to hospital/jail?
   5. Was the witness denied access to you once they got to the hospital/jail?
   6. Did a qualified person draw your blood?
   7. Was the blood kit used expired?
   8. Chain of Custody?
      1. Was the blood appropriately collected?
      2. Was the blood properly sealed and packaged?
      3. Was the blood kit properly stored?
      4. Who had access to the blood kit?
      5. Was there an opportunity for someone to access and possibly tamper with the blood?
      6. How did the blood get to the lab?
      7. How long did it take the blood to get to the lab?
      8. Was the chain of custody of the blood documented?
      9. Was the blood kit intact when it arrived at the lab?
   9. Blood analysis?
      1. What method was used to test the blood?
      2. Chemical reaction with any preservatives or anticoagulants in the vials?
      3. Fermentation of the blood?
      4. Was the lab accredited?
5. Magistrate
   1. Defendant’s conditions of release were unreasonable
   2. Defendant’s witnesses were denied timely access to observe the defendant
6. Double Jeopardy
   1. A mistake by some government agent may result in the defendant getting punished twice.
      1. Unlawful vehicle seizure
      2. Unlawful license suspension
      3. Getting arrested for a clerical error

In Court Issues

1. Speedy Trial
   1. Unreasonable delay
2. Brady violation
   1. Evidence not turned over
   2. Evidence destroyed
3. Giglio violation
   1. Evidence of officer’s prior untruthfulness not turned over