Texas DWI Attorneys Boatwright & Hamilton have filed this Motion on Texas DWI breath test arrests: 

MOTION TO SUPPRESS TEXAS DWI BREATH TEST RESULTS

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes Texas DWI Defendant in the above-styled and numbered cause, by and through undersigned counsel, and respectfully moves this Court to suppress all evidence seized as a result of illegal acts by the state. In support, Texas DWI Defendant shows the following:

1. On or about January 15, 2005, Texas DWI Defendant was stopped, searched and detained by officers from Department of Public Safety. Subsequent to the stop, Jack Smith was arrested for Texas DWI Driving While Intoxicated, 3rd offense.

2. The arrest and search of the defendant was without valid warrant, reasonable suspicion, or probable cause in violation of the Fourth and Fourteenth Amendments to the United States Constitution, Article I, Section 9 of the Texas Constitution, and Article 38.23 and Chapter 14 of the Texas Code of Criminal Procedure. Texas DWI Defendant requests a hearing outside the jury's presence to insure that evidence the state seeks to admit is admissible and to prevent the jury from being prejudiced by evidence which may be inadmissible.

3. All statements made, either oral or written, and any acts performed after said seizure of Texas DWI Defendant are fruits of the illegal arrest and search and are therefore inadmissible as fruits of the poisonous tree, as is any other evidence seized as a result of the statements and acts.

4. Because the Texas DWI defendant was illegally detained but not arrested, there was no deemed consent to the taking of a breath specimen under Section 724.011, Tex. Transp. Code Ann. (Vernon). The Texas DWI officers also failed to give the defendant the required statutory warning under Texas DWI Section 724.015, Tex. Transp. Code Ann. (Vernon). Thus the defendant's Texas DWI breath test and the breath alcohol concentration analysis should be suppressed as the defendant's breath test was taken in violation of the defendant's rights. The defendant also did not voluntarily, knowingly, and intelligently consent to the field sobriety test and the Texas DWI breath test.

5. Additionally, the Texas DWI defendant's breath specimen was not taken within a reasonable period of time. The Texas DWI breath test was performed two hours after the defendant was stopped for Texas DWI Driving While Intoxicated. There is no way to determine if, at the time the defendant took the breath test, his breath alcohol concentration level had peaked or whether it was rising or declining. The Texas DWI defendant took the breath test so long after the defendant was stopped that there is no way to ascertain what the Texas DWI defendant's breath alcohol concentration was at the time he was stopped for allegedly Texas DWI Driving While Intoxicated.

6. Furthermore, the state did not preserve Texas DWI Defendant's breath specimen. The Intoxilyzer into which the defendant blew a breath specimen has the capability to preserve breath samples to permit independent testing by the defendant. Destruction of the breath specimen denies the defendant the opportunity to discover potentially exculpatory evidence, and the state's actions have thereby violated the defendant's rights to discovery and due process and due course of law under the Fifth and Fourteenth Amendments of the United States Constitution, Article 1, Section 19 of the Texas Constitution, and Article 38.23 of the Texas Code of Criminal Procedure.

WHEREFORE, PREMISES CONSIDERED, Texas DWI Defendant respectfully moves this Honorable Court to set the matter for a pretrial hearing pursuant to Article 28.01 of the Texas Code of Criminal Procedure, and, after hearing the evidence, that the Court suppress all evidence seized as a result of the above described arrest and search and seizure, all evidence based on the field sobriety test and the breath test results, and any and all statements, either oral or written, made pursuant to or after the arrest of the defendant.

Respectfully submitted,

Boatwright & Hamilton, LLP

1005 Broadway

Lubbock, TX 79401

Texas DWI Attorney

1-800-DIAL-DWI

By:

Stephen Hamilton

State Bar No. 24007311

Attorney for Jack Smith

Texas DWI Attorney for Texas DWI Defendant

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