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LegalEagle1, Criminal Lawyer
Category: Criminal Law
Satisfied Customers: 794
Experience:  Practicing attorney licensed for over 23 years.
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A was stopped for failure to use turn signal to merge into

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A was stopped for failure to use turn signal to merge into lanes @ 10:37p.m. Arrested 10:49 p.m.. Intoxilyzer 5000 results: 0.88 @11:37p.m.; reference .079 @ 11:54 p.m.; .092 @ 11:56 p.m.
Despite doing very well on the f.s.t. he was arrested & charged with D.W.I.
Q: Please advise how to best defend against the charge.
Hello and welcome to JustAnswer. I would like to assist you with your question today.

I would like a little more information before I provide you with an answer.

Am I correct in assuming the driver was 21 years of age or older and was not driving a commercial vehicle?
Customer: replied 4 years ago.

Yes, business man, over age 50. Does not have a commercial driver's license.

I'm having trouble understanding your test result sequence as you have written it.

Are 0.88 @11:37p.m. and test of the subject .092 @ 11:56 p.m.

and the 079 @ 11:54 p.m. a reference test?
Customer: replied 4 years ago.

Sorry , it should be: 0.088 @ 23:53; reference 0.079 @ 23:54; 0.092 @ 23:56.

Stop was @ 10:37 p.m. Arrest was @ 10:49 p.m.

Customer: replied 4 years ago.

Given the facts provided what should defendant seek to establish in his defense?

I am away from my computer. I saw you responded on my phone. I should be back at my computer in 45 - 60 minutes. I'll give you a detailed response then.
Customer: replied 4 years ago.

I'm must now leave my office.I'll be home in about an hour. Thanks.

Sorry about the delay.

Texas's DUI statute is written so the offense requires the person's breath concentration to be above .08 at the time of driving. A person who has eaten food can continue to absorb alcohol and have their BAC continue to rise for an hour or longer after they stop consuming alcohol.

So a person who has a BAC test result of .088 an hour after driving could have been below .08 when they were driving.

Also the margin of error for the reference sample is +/- .010 g/210 L. The testing protocol requires that the subject have two tests that are within .020 g/210 of each other. Thus the best accuracy the prosecutor can argue that a test result of .088 shows is that driver was between .068 and .108 g/210L. Obviously the .068 is well below the legal limit.

Present the absorption argument along with the margin of error argument and you could have a driver whose BAC was closer .05 at the time of driving.

The good FSTs also support a claim of a Low BAC. Obtain the Intoxilizer 5000 manual. It will have the information regarding the margin of error. The FST training materials will help you use the good performance on the FSTs to argue a low BAC.

A smart prosecutor will offer to reduce a charge on those facts.

Good Luck.

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Customer: replied 4 years ago.

Very well done! Great information.

Q: Can a hearing on a motion to suppress evidence regarding the above issues be heard & ruled on by the Judge, thereby avoiding a jury trial?

All three arguments go to the weight of the evidence when presented to the jury. If however there is a video of FSTs and the defendant does not appear to be impaired in the slightest. You many be able challenge probable cause for the arrest and requesting the defendant to take the test.

I find sometimes doing this though, just makes the prosecutor and cops smarter and better able to respond to criticism at trial. You really need to obtain all the information you can before deciding on which approach to take.
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