In DWI cases, the discovery usually consists of three main components. The Offense Report, the Dashcam video, and Blood or Breath analysis. The combination of these elements will have a lot to say about whether a case is strong or weak for the prosecution.
The Offense Report
This report prepared by the arresting officer will have a narrative of what occurred from the officer’s prospective. This will include the initial stop, the DWI investigation and any other pertinent details. The Offense Report is usually written in such a way as to support the prosecution. It is important to cross-check the report with the other evidence in the case, such as the dashcam video
This video is the single most important piece of evidence in most DWI cases. The video will usually begin a few seconds to minutes before the stop and will continue through the DWI investigation and arrest.
This video will be shown to the jury in all trials, so when watching the videos, it’s important to keep in mind what the average person would think when watching. Does the person seem drunk? Are they rude? Do they have trouble keeping balance? Are they slurring their speech? How was their driving? Did they swerve between lanes? Did they lead the police on a little chase before pulling over?
And this works both ways. Does the dashcam show the initial violation that caused the stop to be initiated? Was the officer rude in conducting the investigation? Does the officer’s report exaggerate the clues from the Field Sobriety test? The answers to these questions, in totality, will help shape your case and help you determine whether it is a strong or weak case for the prosecutor.
Blood Alcohol test
The officer on scene conducting the DWI investigation will request that you blow into a breathalyzer. If you have had any alcohol that day, you should not blow, even if you feel you are not drunk. Most people don’t realize that .08 is a very low bar. Additionally, the test might not be accurate. For example, f you just finished a drink the test could show a BAC above .08 because of the alcohol in your mouth, rather than the amount in your blood stream.
If you refuse, you might still be arrested. The Officer might decide to approach a judge for a blood draw warrant. If they do this, a phlebotomist will draw your blood in a room at the jail. A sample of the blood will be sent to the lab and tested. This process takes months.
Sometimes, either due to lack of resources or laziness, the officers will not request a warrant, and will not get a blood sample even when a breathalyzer was refused. In these cases, prosecutors must go on the dashcam video and officer’s testimony alone. These cases are typically weaker, and prosecutors are more likely to offer a good plea.
Sometimes there is a 911 call that a driver was swerving across the road. Maybe there is damage on the car that seems fresh. Perhaps there are receipts showing the purchase of alcohol earlier in the night. Every case is different, so there may be additional evidence that doesn’t fit into the above categories, but still does have a bearing on your DWI. The discovery determines the strength of the case, which in turn has a direct effect on the next section, which is plea negotiations.
Plea negotiations in misdemeanor cases are shockingly similar to used car negotiations. It’s not a perfect system as far as fairness is concerned, but it’s what we have. DWI’s are very common in Travis County and the plea negotiations tend to follow a pattern, which I will out line below.
At one of the first settings, the prosecutor will give an initial offer – usually probation with fine and community service. The term of the probation and fine will depend on the severity of the DWI and the strength of the prosecutor’s case. Sometimes, the prosecutor will also ask for a DL suspension and/or an IID for some or all of probation.
This offer is usually made before the prosecutor has really looked into the case. If there are mitigating factors in the dashcam video, I will ask the prosecutor to watch (they usually haven’t seen it). Sometimes this will get them to reduce the plea offer.
After an initial round of negotiations, we can sometimes get an acceptable offer (I will get more into what an acceptable offer actually is later). If the offer is not very good, we move to the next step. If there are any pretrial issues such a s a suppression motion, I will file it now and set it for a hearing. If there do not seem to be any issues, then I can set it for trial. Keep in mind that when we set these things in motion, we can continue negotiating. Often the offers get better and better. Rarely does an offer get pulled from the table even when the prosecutors threaten to do so.
Negotiations can and do continue until the day of trial. Often our best offer will not come until the trial date, so it is often to the defendant’s advantage to push it to that point and be prepared to go to trial.