Tools, Tactics, and Strategies for Fighting a Felony Texas DWI Charge

Texas felony DWI defense is a complex skill involving sophisticated possibilities. Texas DWI Specialist attorney Doug Murphy has devoted his career and passion to Texas DWI defense because of the special opportunity to help good people in bad situations, using peculiar scientific, legal, and procedural knowledge. Attorney Murphy's substantial experience not only defending Texas felony DWI cases but also teaching other lawyers felony DWI defense has enabled him to develop a large toolbox of sophisticated tactics and strategies for felony DWI defense. Attorney Murphy also speaks to DWI judges and lawyers nationwide on felony DWI defense. Texas felony DWI defense isn't easy. But your successful defense may well be possible when your Texas DWI Specialist has strong skills honed from substantial experience. Texas felony DWI defense is attorney Murphy's special passion.

Why Felony DWI Defense Strategies Matter

Felony DWI defense tools, tactics, and strategies matter because the outcome of your felony DWI charges depends on those strategies. Your felony DWI charges could, depending on your circumstances, result in a very wide range of outcomes. You may have a complete defense to all felony DWI charges so that you might face no penalties whatsoever. Just because you face a felony DWI charge doesn't mean you will necessarily suffer a felony DWI conviction. Or you may have solid grounds on which to reduce the felony DWI charge or minimize its potential penalties. Conversely, your case may involve aggravating facts and circumstances, potentially making your outcome worse than other felony DWI cases. The tools, tactics, and strategies that your DWI Specialist defense attorney deploys on your behalf will likely have a far greater effect on your case's outcome than any other factor. Trust premier DWI Specialist defense attorney Doug Murphy to deploy the following tools, tactics, and strategies in your effective felony DWI defense. Value your freedom, reputation, and relationships.

Invoking Your Texas DWI Rights

Attorney Murphy first believes that you gain an advantage in your Texas felony DWI defense when you and your Texas DWI Specialist know your rights. Knowledge, they say, is power. Knowledge is especially powerful in your defense of Texas felony DWI charges. DWI courts should, in theory, operate within strict laws, rules, and procedures. The felony DWI laws are certainly in place in the code books and casebooks, and in the experienced minds of the DWI judges and prosecutors. But having law in place is one thing, while ensuring that a court, judge, prosecutor, and police follow those rules in a felony DWI case is another thing. When you retain the best available Texas DWI Specialist attorney Murphy for the defense of your Texas felony DWI charges, you get not only attorney Murphy's comprehensive and detailed knowledge of felony DWI law but also his skills, ensuring that the officials handling your case follow those laws.

DWI Constitutional Issues and the Exclusionary Rule

The strategy of invoking your felony DWI defense rights begins with recognizing that police and prosecutor actions often raise constitutional issues. Texas law defines Texas felony DWI charges. But federal constitutional law determines your liberty rights relative to those felony DWI charges. And when police or prosecutors violate your liberty rights, the exclusionary rule may bar their evidence of a felony DWI violation. The exclusionary rule is a principal tool in the defense of felony DWI charges. Federal constitutional law is exceedingly complex and constantly changing, largely dependent on shifting Supreme Court majorities. Yet through his constant DWI defense practice, teaching, and speaking, attorney Murphy stays up to the minute on that federal constitutional law. Attorney Murphy may well be able to put these constitutional issues that your case may raise to your effective felony DWI defense, depending on the circumstances of your arrest, processing, and charges:

  • the lack of reasonable suspicion in pulling your vehicle over, constituting an unreasonable search and seizure violating your Fourth and Fourteenth Amendment rights. Challenging the officer's observations and assertions, and invoking the exclusionary rule when those observations do not amount to reasonable suspicion, can be a first line of felony DWI defense;
  • the lack of probable cause in arresting you or searching your vehicle, also constituting an unreasonable search and seizure. Lack of probable cause for arrest and search is a second line of felony DWI defense to which the exclusionary rule can also apply;
  • inadmissible statements taken from you while you are in custody without having informed you of your Miranda rights. The exclusionary rule can also bar admission into evidence of the defendant's own statements, which are often strong incriminating evidence;
  • illegal blood draws done without a valid DWI blood search warrant, violating Fourth and Fourteenth Amendment search-and-seizure rights. The exclusionary rule can also bar the incriminating results of blood draws, when police accomplish those draws without a necessary warrant.

Statutory Elements of the Felony DWI Charge

Invoking your rights also includes recognizing both the common and uncommon statutory issues that Texas felony DWI charges can raise. Texas felony DWI charges require proving each element of the charge beyond a reasonable doubt. Lack of credible and admissible evidence on any one or more elements of the charge should result in a dismissal of the felony DWI charge. Texas DWI Specialist attorney Murphy carefully evaluates the availability and admissibility of evidence on each element of the following felony DWI charges, and other felony DWI charges, as a second key strategy, along with invoking your constitutional rights:

  • third offense DWI, requiring proof of intoxication, vehicle operation, operation in a public place, and two prior qualifying DWI convictions. The prior convictions must each constitute a DWI or its equivalent if a similar crime in another state, or the court must dismiss the felony DWI charge, leaving the prospect of a lesser second-offense or first-offense misdemeanor DWI charge;
  • DWI with a child passenger, requiring proof of intoxication, vehicle operation, operation in a public place, and child passenger elements. The passenger in your vehicle must be under age fifteen, or the court must dismiss the charge;
  • intoxication assault, requiring proof of intoxication, vehicle operation, operation in a public place, and serious bodily injury as a result. The injury must create a substantial risk of death or cause serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ. The causation element further requires that the prosecution connect the intoxication with the injury;
  • DWI with a child passenger and intoxication assault, each such charge requiring proof of each of the elements of the two above offenses. If your DWI arrest involved an accident that injured your child passenger, then you could face both the child passenger charge and the intoxication assault charge. But the prosecutor must prove all elements of each charge to gain a conviction; and
  • intoxication manslaughter, requiring proof of intoxication, vehicle operation, operation in a public place, and recklessly causing the death of another due to that intoxication. If the recklessness element is absent, for instance, or the recklessness did not cause the death, then the court should dismiss the charge.

Invoking Texas DWI Procedures

Attorney Murphy also believes that you gain advantages in your Texas felony DWI defense when your DWI Specialist knows how to strategically invoke Texas DWI procedures. While the above constitutional and statutory rights are key tools to your effective Texas felony DWI defense, those tools have little or no leverage without court procedures to put them into effect. Substantive rights like those above are the tools. But court procedures are the tactics that make the tools effective in your felony DWI defense. For your best outcome, your Texas DWI Specialist must be both knowledgeable about the above rights while also skilled in the following procedures.

Using DWI Discovery Procedures

Attorney Murphy knows how to deploy pretrial discovery procedures to obtain the prosecution's incriminating and exonerating evidence. Discovery procedures can be an outstanding tool when deployed in a timely and effective manner. Discovery allows your Texas DWI Specialist to evaluate whether the prosecution has evidence on each element of the felony DWI charge and, if so, how strong or weak that evidence is and how to contest it. Constitutional law requires the prosecutor to disclose exonerating evidence. But Texas state law, codified in the Michael Morton Act, generally further requires the prosecutor to disclose offense reports and written or recorded statements, whether or not exonerating, once the defense lawyer makes the request. And your Texas DWI Specialist may gain further insight into the prosecution's case by invoking your ALR hearing rights. An ALR hearing is an administrative driver's license hearing at which the prosecution must generally present reasonable suspicion, probable cause, and intoxication evidence sufficient to support the DWI charge.

Pursuing DWI Motions to Suppress

Motions to suppress are one of the great procedural tools in Texas felony DWI defense. But your Texas DWI Specialist must be especially skilled to use that tool to its best effect. A motion to suppress invokes the exclusionary rule to bar inadmissible evidence that the police obtained in violation of your constitutional rights. Your DWI Specialist files a motion to suppress with the court when a skilled investigation shows a violation of those rights. Skilled advocacy before the judge may win the motion to suppress. Once the judge suppresses evidence the police obtained in violation of your constitutional rights, the prosecution may lack admissible evidence supporting the charge. In that case, your DWI Specialist may successfully advocate or negotiate for the felony DWI charge's abandonment or dismissal. A winning motion to suppress often means a winning defense.

Invoking DWI Jury Trial Rights

You have a constitutional right to a jury trial when facing a Texas felony DWI charge. Invoking your jury trial rights can be a critical strategy for a winning felony DWI defense. The jury trial is the yardstick against which prosecutors, judges, and DWI Specialist defense lawyers generally measure the probable outcome of a DWI charge, for plea bargain and other purposes. Invoking your jury trial rights means that the prosecution must be ready to convince a jury of each element of your felony DWI charge. Invoking your jury trial rights is thus like calling the prosecutor's bluff, forcing the prosecutor to present admissible evidence on each element of the charge. Juries of your peers can also be wiser, more compassionate, more aware, more practical, more understanding, and more just than the government officials who routinely operate the law enforcement and criminal justice systems. When you have attorney Murphy in your corner, prepared to take your defense before a jury, the prosecution generally knows that you have the most skilled and experienced DWI Specialist available to advocate your jury trial rights.

Invoking the Prosecution's DWI Proof Standard

Texas felony DWI cases can involve hotly disputed facts over intoxication evidence, blood and breath test results, vehicle operation, recklessness, causation, and other elements of the charge. Cases in which the evidence is in reasonable dispute are ripe for a winning defense because of the prosecution's very high proof standard. Constitutional law requires the prosecution to prove each element of a felony DWI charge beyond a reasonable doubt. The beyond-a-reasonable-doubt proof standard is the highest proof standard known in American law. Reasonable doubt on any one element of the felony DWI charge should result in an acquittal on the charge. In contested cases, the skilled services of a DWI Specialist can effectively deploy the beyond-a-reasonable-doubt proof standard against the prosecution to win a not-guilty verdict. Advocating the proof standard can be critical to a successful outcome of a jury trial on a felony DWI charge.

Knowing the Local Court

While, in theory, Texas DWI charges follow statewide rules and procedures, the local courts handling specific DWI cases can differ fairly widely in how they interpret and apply those rules and procedures. When your Texas DWI Specialist knows the Houston and other local courts that handle DWI cases, your DWI Specialist may make a difference in the case's outcome. What may be timely and expected in one court may be untimely and unexpected in another court. What is customary courtesy in one locale may not be customary or courtesy in another locale. Professional relationships of trust and respect can also make a difference from court to court and locale to locale. Attorney Murphy knows the locales and has the reputation and relationships to ensure your fair treatment on a felony DWI charge.

Pursuing DWI Appeals

Appealing a DWI conviction can be another effective tactic in a successful defense of a Texas felony DWI charge. An appeal generally seeks to overturn an unjust conviction. Some convictions are the result of prosecutor misconduct, witness misconduct, judicial errors admitting or barring evidence, juror misconduct, or other irregularities in the DWI trial. Trial errors can definitely unfairly sway a verdict against a DWI defendant. That's why courts have rules and procedures restricting the participants—to ensure a fair trial. The material error affecting your felony DWI case could also be in a pretrial ruling, for instance denying a motion to suppress. An appeal may feel like a last-resort strategy. But a winning appeal often means the dismissal or abandonment of the felony DWI charges. Don't give up if you have suffered a Texas felony DWI conviction. Retain the best available Texas DWI Specialist defense attorney for your appeal. Some cases require an appeal for a deserving win.

Invoking DWI Science

Attorney Murphy also believes that knowing and invoking the DWI science can be an effective strategy, indeed among the best of strategies, in Texas felony DWI defense. Judges and jurors generally trust science, especially when they hear of DWI test results indicating supposedly precise blood alcohol levels. Indeed, jurors often believe science to be more reliable than witness observations and other evidence. Yet DWI science can be notoriously suspect. Science has proven unreliable DWI equipment and protocols that the judicial system once trusted, as DWI science continues to develop. Invoking the science to discredit felony DWI evidence, though, requires much more knowledge and skill, that of a highly experienced DWI Specialist, than many other common tactics and strategies. Here are just a few of the tools in attorney Murphy's science toolbox to help you defend Texas felony DWI charges:

  • knowing how to evaluate, challenge, and handle the DWI toxicology evidence, especially blood test evidence, including such special knowledge as the different measurement devices, calibrating the devices, the officer's training and skill in using the devices, and interpreting the results;
  • knowing and proving the unreliability of DWI breathalyzer tests, including specifically the Intoxilyzer 9000 used throughout Texas and its common misuse and miscalculations, based on such variables as temperature, breathing technique, breath-blood partition ratio, health conditions, test bias, and radio frequency interference;
  • knowing the common and uncommon DWI laboratory errors affecting blood test results, including how to discover those errors and prove them through direct and cross-examination of expert witnesses;
  • knowing how to evaluate, challenge, and handle DWI field sobriety tests, especially as nervousness, poor instructions, poor coordination, medical conditions, and other conditions affect their administration and interpretation;
  • knowing how to evaluate, challenge, and handle DWI video evidence from the latest vehicle cameras, body cameras, and other video recording and surveillance technologies;
  • knowing DWI prescription drug issues, including pharmacology issues like dosages, frequency, and potentially intoxicating and impairing effects, and how combinations of drugs and alcohol may produce different effects;
  • knowing how to challenge the reliability of the so-called drug recognition expert (DRE) protocol, a twelve-step procedure police claim to use to detect impairments from a drug's allegedly intoxicating effect;
  • staying updated on the latest DWI technologies, which are always changing. Science doesn't stand still. Your effective felony DWI defense requires your DWI Specialist to remain up to the minute on the latest science.

Minimizing Felony DWI Penalties

Attorney Murphy also believes that effective Texas felony DWI defense services often involve minimizing DWI penalties. Many cases involve disputed facts, where the skilled services of a DWI Specialist can effectively deploy the beyond-a-reasonable-doubt proof standard against the prosecution to win a not-guilty verdict. In some cases, though, the facts are simply the facts, more difficult to challenge for an exonerating defense. Yet even in those relatively open-and-shut cases, of which there are actually very few, if any, such cases, skilled DWI Specialist defense services presenting mitigating evidence while avoiding aggravating circumstances may make a huge difference in the outcome. Felony DWI cases are not always or even often solely about whether or not the defendant committed the charged offense. Felony DWI cases can also be about the appropriate penalty or punishment if the defendant did commit the offense. Judges can have very wide latitude in sentencing for Texas felony DWI convictions. A third-degree felony DWI conviction carries a prison term of from two to ten years, for instance, while a second-degree felony DWI conviction carries a prison term of from two to twenty years. Two years is a lot fewer than ten or twenty years.

Mitigating Felony DWI Penalties

Cases in mitigation can be a critical tool for minimizing felony DWI penalties. In some cases, the felony DWI defendant's overall life circumstances and specific profile and character can make for a compelling mitigation strategy. Your DWI Specialist may help you pursue a case in mitigation by developing a theme including any one or several of the following:

  • the defendant's age, health, and general capacity, including not only whether the defendant is a minor, college student, or newly emancipated adult but also whether the defendant had mental illness or disabilities, poor physical health or medical problems, or chronic illness;
  • the defendant's education, certification, and licensure indicating responsibility and accountability in other areas of the defendant's life outside of the DWI circumstances;
  • positive aspects of the defendant's family life, such as that the defendant is a good mother, father, son, daughter, husband, wife, or caretaker for other family members, on which felony DWI penalties would have an adverse impact;
  • positive aspects of the defendant's community life, such as that the defendant is a good friend, neighbor, school volunteer, charitable volunteer, and otherwise active in the community;
  • positive aspects of the defendant's employment, such as that the defendant works hard, diligently, consistently, and in roles that respected employers highly value; and
  • the naturally punitive impact of any injuries, medical confinement and treatment, disability, and other harms or losses the defendant has already sustained in connection with the DWI accident or event.

Avoiding Aggravating DWI Felony Penalties

Your DWI Specialist should, at the same time, pursue the critical strategy of avoiding and minimizing the impact of any circumstances or evidence tending to aggravate the felony DWI charge. In some cases, aggravating evidence can be the single most significant factor to overcome for a successful felony DWI defense. Aggravating evidence can substantially increase a felony DWI penalty unless you and your DWI Specialist can develop a sound approach toward counteracting it, such as the following:

  • challenging or otherwise addressing a blood alcohol level of .15 or higher, or other very high level, whether by contesting test results, challenging reasonable suspicion or probable cause, or by other means;
  • addressing the number of prior DWI offenses, if any, such as a second DWI, third DWI, or fourth or subsequent DWI, including challenges to similar convictions in other states;
  • addressing and giving appropriate context to any other prior criminal arrests, charges, or convictions, to avoid negative inferences as to character;
  • addressing and giving family or social context to the potential impact on child passengers whose presence in the vehicle led to the felony DWI enhancement;
  • addressing and appropriately minimizing the seriousness of any bodily injury contributing to the felony DWI enhancement;
  • addressing any alcohol addiction or abuse issues, or drug addiction or abuse issues, relating to the felony DWI charges, especially with voluntary education, counseling, and treatment; and
  • addressing and, if possible, challenging felony DWI sentence enhancements based on the role of the person killed or injured in the DWI event.

Beware Collateral Consequences

Attorney Murphy also believes that an effective defense must beware of the collateral consequences of a felony DWI charge. The defense lawyer who ignores collateral consequences, such as the ALR hearing on license suspension, can turn a winning case into a lost case or turn a losing case into a loss worse than it need have been. Managing collateral consequences of a felony DWI charge could be the single most-significant defense strategy, depending on your own special circumstances. Consider these special examples where addressing collateral consequences could be your DWI Specialist's best tactic:

  • ensuring that the defendant retains the greatest driver's license privileges available under the circumstances, especially when the defendant has a commercial driver's license or otherwise depends on driving for income or other critical roles;
  • ensuring that the felony DWI charge does not lead to the defendant's loss or suspension of a professional or business license or certification necessary for the defendant's employment and income;
  • ensuring that the felony DWI charge does not affect the defendant's child custody, parenting time, or other family rights and relationships and that the defendant instead preserves those critical rights and relationships;
  • ensuring that the felony DWI charge does not result in the defendant's deportation, loss of a work visa, or other loss of immigration rights and legal status;
  • ensuring that the felony DWI charge does not result in the loss of a pilot's license or medical aviation certification, firearms license, security clearance, or other special certification or status relating to work or other important roles; and
  • avoiding adverse publicity potentially affecting reputation, employment, and other important rights, relationships, and opportunities.

Effective Plea Negotiations

Attorney Murphy knows that in many cases, the outcome comes down to effective plea negotiations. But while some defense lawyers go into a case believing that they know its likely plea-bargained outcome, a skilled DWI Specialist instead develops every case to its fullest to ensure that plea negotiations lead to the best possible outcome. Plea bargains aren't a given. Prosecutors don't necessarily take a cookie-cutter approach to resolving DWI charges. Instead, each case has its own unique facts and circumstances. Every defendant is different, just as every arrest is different. The evidence supporting a DWI charge differs in every case. The DWI Specialist who fully works up each case reveals those differences to put them to the best effect in plea negotiations. Here are just a few of the unique factors in each case, each of which can be highly relevant to an effective plea bargain, around which your DWI Specialist may be able to develop a felony DWI defense strategy:

Retain a Premier Texas DWI Specialist

Ultimately, retaining the best available Texas DWI Specialist is your best strategy when facing felony DWI charges. When you retain Texas DWI Specialist Doug Murphy, you retain the services of one of only two attorneys holding both Texas DWI Specialist and Texas Criminal Law Specialist certification. Attorney Murphy has also won Best Lawyer recognition as 2023 Lawyer of the Year for DWI Defense. Attorney Murphy has even been Dean of the National College for DUI Defense at Harvard Law School, offering lawyers nationwide the most advanced DWI defense training. Call (713) 229-8333 or go online now to retain the best available DWI Specialist defense attorney to defend your Texas felony DWI charges.

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