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

MOTION TO DISMISS THE TEXAS DWI .08 ALCOHOL CONCENTRATION

ALLEGATION FOR FAILURE TO PRESERVE

DEFENDANT'S BREATH SPECIMEN

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes Texas DWI Defendant in the above-styled and numbered cause, and respectfully moves this Court to dismiss the .08 alcohol concentration allegation from the state's charging instrument, and for good cause shows the following:

1. On or about January 15, 2005, the defendant was arrested for Texas DWI Driving While Intoxicated, 3rd offense, and he was tested by the officer on an Texas DWI Intoxilyzer which is used to test the alcohol concentration in the defendant's breath specimen.

2. The Texas DWI Intoxilyzer is capable of preserving the same breath specimen that it tests, but the state chose not to preserve the defendant's specimen. This renders it impossible for the defense to retest the breath sample to determine the accuracy of the test result or to provide the defense with exculpatory evidence.

3. The state consciously chose not to preserve the defendant's breath specimen; therefore, its destruction was intentional. This precludes the defense from retesting the breath sample, thereby denying the defendant his right to confrontation, due process, and a fair trial. See the Sixth and Fourteenth Amendments to the United States Constitution, Article 1, Section 10 of the Texas Constitution, and Article 1, Section 10 and Articles 1.05 and 1.27 of the Texas Code of Criminal Procedure.

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this Court grant this motion and order that the prosecution dismiss the Texas DWI .08 alcohol concentration paragraph in the charging instrument.

Respectfully submitted,

Boatwright & Hamilton, LLP

1005 Broadway

Lubbock, TX 79401

800-DIAL-DWI

Fax: (806) 747-8110

By:

Stephen Hamilton

Texas DWI Attorney for Texas DWI Defendant

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