DWI / Intoxication Cases—That’s All I Do

DWI 2nd Crash Case Dismissed

MC* was arrested for her second DWI after crashing into two parked cars. When the officer arrived at the crash scene, MC was seated in the driver’s seat and was highly intoxicated. The vehicle was off and was inoperable. There were several empty whiskey bottles and one mostly empty whiskey bottle found in the car. MC’s blood alcohol came back at .18, which is more than twice the legal limit.

The ALR hearing (driver license hearing ) made the difference in this case. We built our defense around one issue, establishing there was no evidence MC was intoxicated when she was driving. The three whiskey bottles were critical for our defense.

Driving while intoxicated requires proof beyond a reasonable doubt that the accused was intoxicated at the time she was driving or operating the motor vehicle.

The state can try to prove intoxication in two ways:


1. by evidence a person had lost normal use of their mental or physical faculties because of alcohol or another intoxicating substance;


or 2. by evidence that an accused’s blood alcohol concentration was .08 or greater at the time that person operated the vehicle.

According to the police report, MC’s crash occurred at 3:15 AM. It may have been even earlier, but it could not have been later because that was the time her accident was reported to the police. MC was arrested at approximately 4:30 AM, shortly after the officer arrived. The officer testified at the ALR hearing that MC refused the field sobriety tests almost immediately and was arrested.

In this case, there was no question that MC had lost her normal mental and physical faculties when the officer arrived at the crash. She appeared far from normal. If we accept the blood test was accurate, then her blood alcohol concentration was .18 when the blood was drawn. However, the ALR hearing revealed that the State’s evidence MC was intoxicated when she drove was very weak.

He was also the first officer to arrive and no other witnesses had contact with MC before he arrived. MC admitted to him she had been drinking, but the officer never determined when she had been drinking. We locked him into this testimony.

Q: Did you ask her if she had anything to drink at some point?
A: Yes
Q: And she told you that she had three drinks?
A: A few drinks.
Q: And so she didn’t specify the timing of those drinks, correct?
A: No.
Q: You didn’t pin her down to when she had those drinks correct?
A: No.
Q: All right. So— you really have no idea when she had those drinks correct?
A: Correct.
Q: All right. And you have no evidence that she had those drinks before she was driving or after she was driving correct?
A: Correct.

This testimony was tremendously helpful because MC had access to alcohol in her car from the time of the accident until the time the officer arrived.

Q: And you found three bottles of liquor in her vehicle, correct?
A: Yes
Q: By bottles of liquor, do you mean whiskey?
A: Yes

Q: These bottles were open, correct?
A: Yes
Q: So you have no idea, if after her collision, she sat there drinking whiskey, correct?
A: Correct
Q: And you couldn’t say that she didn’t do that, correct?
A: Correct……. Two were empty and one was almost empty.

This testimony destroyed the State’s case. Because the State could not prove MC had been drinking before the accident, it could not use MC’s behavior or appearance after the accident as evidence. In the same way, the State could not use MC’s alcohol concentration because the State could not prove the alcohol was consumed before the accident, the time of operating the vehicle.

This testimony ultimately destroyed the State’s case.

However, I still needed to rule out the accident as evidence of intoxication. The State could argue the accident was caused by a loss of mental or physical faculties and that it must have been caused by alcohol. The officer’s testimony was helpful there as well.

Q: This was a pretty significant collision, correct?
A: Yes

Q: Do you have any idea if she was texting?
A: No.
Q: Or using her phone to pick a song?
A: No.
Q: So you really cannot say why this accident happened, correct?
A: Correct.

After this ALR hearing, we set MC’s case for trial. On the trial announcement setting, I reviewed the officer’s testimony with the prosecutor before we were called to trial. After this conversation, the prosecutor dismissed the case.

The prosecutor dismissed the case.

This is just one example of how important the ALR hearing is for a DWI defense. They are a priority in my practice. If you have questions about a DWI or an ALR hearing, do not hesitate to call me. I’ll be glad to talk with you.

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