Dwi no breathalyzer

[Melnic719]

What is the name of your state (only U.S. law)? Texas

My boyfriend got arrested the other night, he had a couple beers, 3 at most and the officer said the breathalyzer was broken. I watched him go through several sobriety tests, one was the abc's, a loud truck drive by and due to nervousness and the interruption, he got to v and he messed up. He did fine with the heel to toe and the one where he follows the officers finger, then on the one where he stands on one foot he had a hard time with but the ground was uneven. Anyway, this IS his 2nd dwi unfortunately but I'm wondering if the fact that there's not actually a breath test or blood test that he might get a little more leniency or anything helpful to him. Any advice is appreciated, thank you.

 

[Mass_Shyster]

A good attorney may be able to secure a verdict of not guilty.

 

[Melnic719]

Gosh i hope so. My biggest worry right now is the fact that he already has one dwi, he is still on probation for it. I guess ill just hope for the best

 

[CavemanLawyer]

You can't tell that he did fine on the tests because you aren't looking at or for the same thing as the officer. To you I guess he followed the pen ok with his eyes but that is not what the test gauges. The officer is looking at his eyes for involuntary jerking called nystagmus that is a sign of intoxication. The bottom line is that no one can really judge the strength of this DWI without having the evidence to see for themself so he just needs an attorney.

But the State doesn't have to go to trial on this second DWI at all since he is on probation for his first DWI. His probation can be revoked if the judge finds that there has been any violation and the burden of proof is only a preponderance (more likely than not.) So in the hearing it only has to be proven that he was more likely than not to be intoxicated... and actually it is almost surely a condition of probation that he not drink at all so all the judge has to believe is that he drank that night.

The answer is still the same though, he needs and attorney.

 

[jetsfever01]

some police have a checklist of the amount of tests on a field sobriety you can get wrong before making a decision on what to ticket. if he failed two of those tests out of whatever how many (which seems like it in the officers eyes but may not seem like it in yours), the officer can have reason to believe somethin is up.