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What Prosecutors are initially thinking in a DWI Case?

DWI's are not all about a number on a breath or blood test, as the first thing a prosecutor has to look at is justifying the police officer's reason for temporarily stopping the car.  Most people are mistaken believing that an officer needs probable cause to stop a car.  The standard of proof needed to stop the car for a temporary detention is actually lower than probable cause and easier for an officer to meet.  An officer must have a qualifying reason or legal justification for stopping the car called Reasonable Suspicion, whereas any arrest requires more proof to meet the higher burden called Probable Cause.  Temporary detentions based upon reasonable suspicion are more commonly called “Terry Stops,” from the U.S. Supreme Court case Terry v. Ohio (1968). 

An officer is allowed to temporarily stop and investigate a person if the officer has reasonable suspicion that some activity out of the ordinary is or has occurred, some suggestion to connect the person with unusual activity, and some indication that the activity is related to crime.  Further, the reasons cannot be a hunch but must be based upon facts that the officer can articulate at the time of the stop and not later after the investigation reveals more information.  It is important to note, that the specified activity does not have to be illegal, but only be out of the ordinary and related to crime

The question becomes was the stop reasonable based upon all of the information added up.  Unfortunately, traffic violations will almost always justify a Terry Stop or temporary investigative detention.  Even if the stop was reasonable, the officer must have additional reasons to continue to detain and investigate, including any request that the driver perform field sobriety tests.  Further, a detention that begins reasonably becomes unreasonable if the officer exceeds what is necessary to investigate the reason for the stop. 

In addition to reviewing the reason for the stop, prosecutors review the cases to make sure the officer had probable cause to arrest.  Officers will routinely ask if the driver has been drinking and make a note if the officer smells alcohol.  The way that officers investigate is intentional, they are looking for signs of impairment like a driver having trouble finding their drivers license, slurred speech, red or bloodshot eyes, unsteady balance, using the car to hold on to, as well as, slow answers to questions that might suggest impairment.  Their goal is to document enough evidence to establish probable cause to arrest the person for DWI.  In addition to common signs of intoxication, an officer will try to utilize field sobriety tests that are hoping to highlight a person's coordination, balance and dexterity which are thought to decline as a person becomes intoxicated. 

The officer will be trying to assert that the driver is impaired by alcohol or drugs which is a lower standard than what is commonly thought of as “drunk driving.”  The amount of impairment must measure a loss of either the “normal use of mental or physical faculties” or an alcohol concentration of 0.08 or greater.  Texas Penal Code Section 49.01.

However, the burden of proof necessary for a guilty conviction in a DWI case is again higher than probable cause, as the judge or jury must believe that the person was driving while intoxicated beyond a reasonable doubt. 

There are different burdens of proof along the way that the prosecutor must measure the evidence by.  The “burden of proof” is just a funny way to say how sure a person has to be.  The officer only needs to be sure enough to stop and temporarily detain based upon reasonable suspicion.  An officer needs to be more sure to arrest based upon probable cause, and the prosecutor has an even higher burden for a conviction.  Again, the prosecutor will have to prove the case to the judge or jury, making them sure beyond a reasonable doubt that the person was driving while intoxicated.  As you can see a prosecutor wants to review the evidence and make sure that both “the Stop” is good, and that there is enough proof for a conviction.


The elements that make up the offense, or specifically:

  1. YOU

Prosecutors will typically try to prove these by calling the arresting officer, and proof of intoxication is often the most contested. 

Prosecutors will try to prove intoxication by presenting evidence that you:

  1. Consumed so much alcohol and/or drugs or other substance that you lost the normal use of your mental faculties.
  2. Consumed so much alcohol and/or drugs or other substance that you lost the normal use of your physical faculties.


  1. You had an alcohol concentration of 0.08 or higher.

Jason S. English has been recognized as one of the top Criminal Defense Lawyers in Austin. 

Jason S. English is an award-winning criminal defense lawyer

If you have recently been arrested in Austin for a DWI, you need the right lawyer to help you and protect your future.  No one calls us because they have been arrested, they call us because of what the arrest can do to their future.  Jason S English Law, PLLC handles misdemeanor and felony DWI cases as a part of its practice - we know how to prepare your case to meet your goals.  Call now at 512-454-7548 to get the help you need for you and your future. 


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Austin, TX 78701