Top DWI Defenses – Drinking After Driving

Every now and then a DWI case will come into my office where my client actually had an opportunity to drink alcohol between the time he was driving and when the police show up to investigate. Many times this will happen when there was some kind of minor accident involved. The scenario can play out like this: person driving the car gets in a small accident right in front of a bar. After exchanging information with the other driver, the person goes into the bar to have a drink to calm his nerves after the accident. By the time the police show up the person has had two or three drinks and comes out to speak to the police. Now imagine the rest of the investigation. The cops ask if he has been drinking and he says, “of course I’ve been drinking, you just came and got me out of the bar.” The police decide he is intoxicated, place him under arrest, and transport him to the police station.

The Breath Test
Although there are many problems with the breath test machines themselves, one thing we cannot blame on a breath test machine is the inability to distinguish between alcohol drank before someone drove, and alcohol drank after someone drove. This is the fundamental issue with any breath test in a case like the one described here. There is almost no way for the police officer to know if the person is intoxicated from the alcohol before or after driving, and once the case is in court, there is no almost no way for a judge or jury to determine if the person was intoxicated at the actual time he was driving. To be found guilty of Driving While Intoxicated you do have to be intoxicated while you were driving. It’s a nice change in our complex system of laws when a legal idea like this appears right in the name of the crime.

Presumption of Innocence and Reasonable Doubt
If there is no way to distinguish between how intoxicated the person was at the time he was driving versus his level of intoxication when the police arrived, then he must be found not guilty. He will be innocent until proven guilty beyond a reasonabe doubt, and there will always be reasonable doubt as long as the government cannot prove when he became intoxicated. These cases are always interesting, and like many DWI cases, the specific facts of these cases can change everything. Sometimes the government will find a witness or video of the suspect shortly before or shortly after he was driving. In those cases the government has evidence to demonstrate whether the system seemed intoxicated much closer to the time he was driving. Although neither a witness, nor a video evidence will be as strong as a trained police officer conducting a full investigation, it could be enough in some cases for the government to prove the case beyond a reasonable doubt.

If you would lke more information on Missouri drunk driving laws, please visit our DWI page.