Should You Set A Breath Test Case for Trial? Yes, Because You Never Know. by Plano DWI lawyer Troy Burleson

By Collin, Dallas and Denton County DWI Attorney Troy Burleson

Like I have said many times before, you never know what is going to happen at trial. Today, I had a breath test trial in a local county (I will not name the county to protect the prosecutors). My client gave a breath sample above the legal limit (greater than 0.08) and above the statutory limit in Texas that would have required a deep lung device had my client been convicted or entered into a guilty plea (greater that .150).

During voir dire it became evident that the jury panel would follow the law and evaluate the credibility of ALL the evidence presented at trial. This is usually the hardest concept to get a potential juror to understand during voir dire. Most potential jurors believe that if they are shown a breath test score by the prosecution during a trial, then the score has already been judged credible. This IS NOT the law.

Jurors are the sole judges of the credibility of ALL the evidence, both physical and in testimony form. This panel understood that concept and it was clear that they would not simply accept that a machine used by the government was scientifically valid and without flaws.

Additionally, several member of the jury panel had read the recent stories of the overturning of several wrongful convictions in Texas. I reminded the jurors that the NUMBER TWO cause of wrongful convictions in the State of Texas was junk science.

Once the trial began, it continued to get worse for the prosecution. It was clear that they were dealing with improperly trained officers who were not prepared for trial. Halfway through the trail, the prosecution offered my client a plea deal that was not a DWI, would not show as a final conviction on her permanent record, and did not include a deep lung device. This deal saved my client thousands of dollars in fees and surcharges not to mention the amount of money that she saved by not having a DWI conviction on her record (i.e. raised insurance rates, DPS charges, etc.).

There are many ways to trip up even the best cases. A proper voir dire is one of the best. Educating jurors on the law is a difficult task especially considering a judge usually only allows 30 minutes for voir dire. Hoverer, when it is done right it can lead to remarkable results. The result of today’s case was that my client took her chance on a breath test case and won. Everybody is happy.

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