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Constitutional Issues in DWI Pre-Trial and Trial Defense

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.
—Section 1, Fourteenth Amendment to the United States Constitution

Generally speaking, the Articles of the Constitution create the power structure for the government as an institution, while the Constitution's amendments limit the government's ability to use its institutional power against individuals. Since, historically, governments have abused their power by wrongly imprisoning citizens and seizing their property, the Amendments create protections for individuals by creating a process that police, prosecution, and the courts must use to prove someone's guilt.

In practice, that means that the Constitution is not some vague set of principles. Its requirements directly impact every stage of "driving while intoxicated" (DWI) defense, from before the arrest to after the trial. Let's examine a few of the Constitutional issues that a DWI attorney may take into account during the preparation of your defense.

Constitutional Issues Before and During an Arrest

The Fourth Amendment of the Constitution prohibits unreasonable search and seizure. Therefore, courts have held that police cannot just stop any person driving a car for no reason. Instead, before they can pull someone over, they must first have a reasonable suspicion that a crime is being committed. This is a meaningful requirement: A vague feeling that someone's up to no good does not suffice. Instead, a police officer must be able to articulate specific facts—things that you were doing—that gave the officer cause for concern.

If a police officer has reasonable suspicion that a crime is being committed, the officer can pull you over. At this point, the police may question you. You should give basic information such as your name, but, under the Fifth Amendment, you are not legally obligated to answer with any information that would be self-incriminating. You don't need to answer a question such as "Do you know why I pulled you over?" because that is asking you to admit that you know you violated a law.

Next, a police officer may want to search your vehicle. Once again, the Constitution puts limits on the officer's ability to do so. The Fourth Amendment requires explicitly that an officer has probable cause—a reasonable belief that a crime is being committed—before conducting a search or arrest.

As a starting point, the Constitution requires that the police obtain a warrant before they can conduct a search. But keep in mind there are exceptions to this rule: You can (but you shouldn't) waive that right and simply let the police officer conduct the search.

The police officer can conduct a limited search, if the officer sees something in plain view, that already constitutes a crime. For example, if an open container of alcohol is visible through the front window, the officer could open the car door to inspect the container. However, seeing a beer can in the passenger seat would not give the officer the right to inspect the trunk of the car. For that, they'd still need a warrant or your permission.

That's essentially the justification for why the police can ask you to complete a field sobriety test. Furthermore, the police still need your consent or a warrant for a blood alcohol concentration (BAC) test. However, while you are entitled to refuse one of these tests, the police can use your refusal as evidence that they have probable cause to arrest you.

If you're involved in a DWI-related accident, there is a "no refusal" statute that requires drivers to submit to a blood test. There is some debate on this specific point as to whether this law is Constitutional.

If the police have probable cause for a DWI arrest, the Constitution still protects you. The police are required to give you the Miranda warning, to remind you that you have the right to counsel and that you have the right not to speak to the police when they have you in custody.

Constitutional Elements in Pretrial and Trial Proceedings

Constitutional concerns continue throughout pretrial and trial proceedings.

During an arraignment, the prosecutor will formally submit to the court the charges that are being filed against you. According to the Sixth Amendment, a criminal defendant must know the allegations brought against them, so they can successfully prepare a defense that responds to those same charges.

For example, the Sixth Amendment requires a speedy and public trial, but it also mandates that the defense can present witnesses to refute the charges. In preparing a DWI defense, this becomes a balancing act. As a defendant, you want the process to be over as quickly as possible, but you also want to have the necessary time to gather the evidence and talk to witnesses. During pretrial preparations, you may need expert witnesses to conduct a scientific analysis of the equipment and findings of a blood or breath alcohol concentration (BAC) test. Therefore, your DWI lawyer needs to be able to address these competing concerns when the court sets the trial schedule.

The Eighth Amendment protects you from having to pay "excessive bail." A judge can set bail, ensure that you appear at future court proceedings, and protect the community's safety, but a judge cannot use bail to punish a defendant. The judge may not set an extremely high bail if that would mean the defendant's bail requirements are more severe than what they'd receive upon conviction.

The Bill of Rights also addresses individual rights at trial. The Sixth Amendment gives you the right to have a public trial, with a jury of your peers passing judgment. It further specifies that the trial must take place in the state and district where the crime was alleged to have been committed. It also gives you the ability to call witnesses and directly confront your accusers. You continue to be free from any obligation to provide any testimony or evidence that would incriminate you. You can also ask the court to exclude any evidence that the prosecutor would use if it was obtained in violation of your Fourth Amendment rights.


If a defendant is convicted, the Constitution limits the state's ability to punish the offender after the proceeding. The Eighth Amendment specifically prohibits "cruel and unusual punishment." It also prevents the state from levying excessive fines against you. In the context of a DWI conviction, note that the state has the option of punishing an offender with a period of incarceration, monetary fines, or a combination of jail and fines.

Currently, fines for a first-offense DWI can result in a maximum fine of $6,000; however, a DWI can mean that you end up paying much more than that when you add in court costs, car impound fees, and other administrative fees. You might wonder why these additional fees are constitutional. The difference is that a fine is intended to punish. Post-conviction fees and costs are considered allowable because the goal is to reimburse the government for the costs incurred because of one's wrongdoing.

The Constitution also provides that the state cannot re-try you for a criminal offense. Therefore, if you are found not guilty, the government cannot re-arrest you and go back to court with new evidence or new charges relating to the same alleged crime. They get only one bite at the trial apple. (Note that an individual can face both criminal charges and a civil case relating to the same event.)

Lastly, you have the right to appeal a conviction, asking the court to review your case if there was some violation of law or Constitutional principle. So the process includes not just Constitutional protections along the way but also a review mechanism to make sure that the appropriate protections were in place.

Right to Counsel

The drafters of the Constitution knew something that is just as true today as it was then: A criminal charge is not a conviction. People can and do win a DWI defense. But it's worth noting that the framers also already knew—even before that process existed—criminal litigation would so be complex that every person accused would need an attorney to navigate it.

Therefore, in the Sixth Amendment, the Drafters included a right to have a lawyer in the Constitution itself. They knew a great attorney could make all the difference.

Contact Our Harris County DWI Defense Attorney for Constitutional Rights

Houston attorney Doug Murphy is regularly recognized as one of the Best Lawyers in America by US News & World Report. Murphy is one of only two attorneys in the state of Texas who is Board Certified in both Criminal Law and DWI Defense. Bringing 20 years of experience in the courtroom in DUI defense, Murphy serves as the Dean of the National College for DUI Defense conducted at Harvard Law School, while he previously was on the board of directors and as co-chair of the DWI Committee with the Texas Criminal Defense Lawyers Association.

If you face DWI charges in Texas, contact Doug Murphy's office today at 713-229-8333 to discuss the case and begin working on the defense.

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