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Probable Cause to Arrest

An attack on the officer’s stop can be a powerful way of defeating the State’s driving while intoxicated case, but it is by no means the only way of defending a DWI case. Even if the peace officer had cause to stop for a traffic violation, he may only seize a person on the side of the road for the amount of time necessary to effectuate the purpose of the stop. Unless the officer has probable cause to believe the driver he has stopped is intoxicated, he must issue his ticket and release the driver.

If the officer has no information to believe the driver had been drinking alcohol or was otherwise impaired, he has no probable cause and cannot then continue on with his investigation. In other words, an officer cannot just ask just any driver to stay on the side of the road and submit to embarrassing field sobriety tests. Further, there is no requirement that an individual submit to field tests absent probable cause.

Often times the officer will testify at trial that he smelled alcohol on the driver or observed him to stumble when he exited the vehicle. Perhaps the officer will testify that the driver had slurred speech or trouble retrieving his driver’s license when requested. Maybe the officer will say the driver admitted to drinking alcohol. These are all relevant factors that will enable the officer to continue his investigation. However, what if none of this information is reported in the police officer’s written report?

Was your arrest justified?

The police officer must prepare an offense report after each arrest. He is trained, both at the academy and in his DWI training, to report every important fact that justifies a DWI arrest. He is further required under Texas law to submit a sworn report to the Department of Public Safety after each arrest when the driver refuses or fails a breath test. What is a Jury or Judge to make of testimony by the police officer made months after a DWI arrest if it doesn’t comport with the information presented in his offense report? Our experience has been that his testimony is largely discounted, and when it relates to the continued seizure of our clients, suppression is the likely possibility.

Keep in mind that in Texas an accused citizen has a right to present constitutional violations both to the Judge and jury, when there is a fact issue about the stop or continued detention. There have been many instances where we have successfully contested the stop and detention, and have prevailed during a jury trial even though the evidence showed our client to be clearly intoxicated. The lesson to be learned here is that the Constitution always trumps guilt.