If you have been charged with DWI in Texas, one of the first questions you are probably asking is: can this actually be dismissed? The honest answer is yes but it depends entirely on the facts of your case, the evidence against you, and the skill of your defense attorney.
Brian Erskine is a board-certified criminal defense attorney in Austin who has defended hundreds of DWI cases in Travis County over more than 20 years. He has seen cases that looked overwhelming on paper get dismissed because of a single procedural error by law enforcement. He has also seen cases where defendants assumed they had no options and pleaded guilty unnecessarily costing them their license, their job, and years of their life.
This post walks through the 7 most effective defenses for getting a DWI dismissed or reduced in Texas, so you understand exactly what options may be available to you.
Can a DWI Really Be Dismissed in Texas?
Yes and it happens more often than most people realize. A DWI charge is not a conviction. The prosecution still has to prove beyond a reasonable doubt that you were intoxicated while operating a motor vehicle in a public place. That burden of proof creates multiple opportunities for a skilled defense attorney to challenge the case.
DWI cases can be dismissed outright, reduced to a lesser charge such as obstruction of a highway, resolved through deferred adjudication, or diverted through a pretrial diversion program depending on your specific circumstances and criminal history.
The key is identifying exactly where the weaknesses in the prosecution’s case are. That is what the 7 defenses below are designed to do.
Defense 1: The Traffic Stop Was Illegal
This is one of the most powerful defenses in any DWI case and one of the most commonly overlooked.
Before an officer can pull you over, Texas law requires them to have reasonable suspicion that a crime or traffic violation has occurred. Reasonable suspicion must be based on specific, articulable facts not a hunch, not a guess, and not the fact that it was late at night near a bar.
If the traffic stop that led to your DWI arrest was not supported by genuine reasonable suspicion, the stop was unconstitutional under the Fourth Amendment. And here is what that means for your case: if the stop was illegal, everything the officer observed and collected after that moment your breath, your blood, your statements, the field sobriety test results may be inadmissible as evidence.
This is called a motion to suppress. If Brian Erskine successfully argues that your stop was illegal and the court suppresses the evidence, the prosecution often has nothing left to work with and the case gets dismissed.
Common examples of illegal stops include:
- Pulling someone over for driving too carefully or too slowly (without other indicators)
- Acting on an anonymous tip without independent corroboration
- Stopping a vehicle based on where it was parked, not how it was driven
- Racial profiling or pretextual stops
Defense 2: The Breathalyzer Result Is Unreliable
A breathalyzer reading of 0.08% or above feels like rock-solid evidence. It is not.
Breathalyzer machines are complex scientific instruments that must be properly calibrated, maintained, and operated under strict procedures. When any of those requirements are not met, the results can be significantly inaccurate and those inaccurate results can be challenged in court.
Breathalyzer challenges include:
- Improper calibration. Texas law requires breathalyzer machines to be calibrated and inspected on a regular schedule. Records of this maintenance must be kept. If the machine used in your case was not properly calibrated at the time of your arrest, the results are suspect.
- Improper officer training. The officer who administered your breath test must be certified to operate the specific device used. If they were not properly trained or their certification had lapsed, the test results can be thrown out.
- Mouth alcohol contamination. Breathalyzers are designed to measure deep lung air. But if you had recently burped, vomited, used mouthwash, or had dental work, residual alcohol in your mouth can cause a falsely elevated reading. Officers are supposed to observe you for 15–20 minutes before administering a breath test to prevent this if they did not, the result may be unreliable.
- Radio frequency interference. Certain breathalyzer models are susceptible to interference from police radios and other electronic equipment. This can produce inaccurate readings.
Defense 3: Field Sobriety Tests Were Improperly Administered
Field sobriety tests the walk-and-turn, one-leg-stand, and horizontal gaze nystagmus test are presented to juries as scientific proof of intoxication. In reality, they are only as reliable as the officer who administers them.
The National Highway Traffic Safety Administration (NHTSA) publishes strict guidelines for how each test must be conducted. If an officer deviates from those guidelines gives unclear instructions, conducts the test on an uneven surface, fails to account for the suspect’s footwear or physical condition the results lose their validity.
Common problems with field sobriety tests:
- Test conducted on a sloped or uneven surface
- Suspect was wearing heels or unsuitable footwear that was not addressed
- Officer failed to ask about physical injuries, disabilities, or medical conditions
- Instructions were given too quickly or unclearly
- Environmental factors such as wind, lights, or traffic were not controlled
- Officer was not certified in NHTSA standardized field sobriety testing
Beyond procedure, it is also worth noting that sober people fail field sobriety tests regularly. Nervousness, fatigue, medical conditions, and even age can cause someone to perform poorly on these tests without any alcohol in their system.
Defense 4: Rising Blood Alcohol
This defense is based on basic human biology and it works.
When you drink alcohol, it does not immediately enter your bloodstream. Alcohol is absorbed gradually through the stomach and small intestine, and the absorption process continues for 30 minutes to 2 hours after your last drink. This means your blood alcohol concentration (BAC) is still rising for a period of time after you stop drinking.
Here is why this matters for your DWI defense: Texas law requires the prosecution to prove you were intoxicated while you were driving not at the time of the breath or blood test, which may have been taken 30 minutes to an hour after you were pulled over.
If you had a few drinks shortly before driving, your BAC at the time you were behind the wheel may have been below 0.08% even if the test taken later showed a higher number. A toxicology expert can model your absorption rate based on your body weight, the drinks consumed, and the timing, and present this evidence to the jury.
Defense 5: Medical Conditions Caused a False Result
Several medical conditions can mimic the signs of intoxication or cause inaccurate breathalyzer readings completely independent of alcohol consumption.
Conditions that affect breathalyzer results:
- Acid reflux and GERD. These conditions can cause stomach contents, including any alcohol present, to move into the esophagus and mouth contaminating the breath sample and producing a falsely elevated BAC reading.
- Diabetes and ketosis. People with diabetes or those on ketogenic diets produce isopropyl alcohol as a byproduct of fat metabolism. Some breathalyzer devices cannot distinguish between isopropyl alcohol and ethyl alcohol the kind in drinks and may produce a false positive or inflated reading.
- Neurological conditions. Certain neurological disorders, inner ear problems, and even migraines can cause balance and coordination issues that look identical to intoxication during a field sobriety test.
- Prescription medications. Medications including antihistamines, antidepressants, sleep aids, and muscle relaxants can cause drowsiness, slowed reaction time, and other symptoms that an officer may interpret as impairment from alcohol.
If you have any of these conditions, your defense attorney needs to know immediately.
Defense 6: The Blood Test Was Mishandled
If your DWI case involves a blood draw rather than a breathalyzer, there are additional challenges available and blood test errors are more common than the prosecution will ever admit.
- Chain of custody problems. Every person who handled your blood sample from the draw to the lab must be documented. If there are gaps in the chain of custody, the integrity of the sample is in question.
- Improper storage. Blood samples must be refrigerated and stored properly to prevent fermentation. Fermentation of blood caused by bacteria actually produces alcohol, which means an improperly stored sample can show a higher BAC than was actually present in your blood at the time of the draw.
- Contaminated draw site. If the nurse or technician who drew your blood cleaned the site with an alcohol-based swab before the draw, this can contaminate the sample.
- Lab errors. Crime labs are not infallible. Samples get mislabeled, equipment malfunctions, and human error occurs. Your attorney has the right to request full records of the lab’s procedures and quality controls.
Defense 7: You Were Not Operating the Vehicle
Texas DWI law requires the prosecution to prove you were operating a motor vehicle. “Operating” has a broader meaning than simply driving courts have found that a person sitting in a parked car with the engine running may be operating the vehicle but the prosecution still must prove it.
If you were found sleeping in a parked car with the engine off, if someone else was driving, or if there is genuine dispute about who was behind the wheel, this element of the offense can be challenged.
Additionally, the vehicle must have been on a public place a private parking lot, private road, or private driveway may not satisfy this requirement in some circumstances.
What About Pretrial Diversion for DWI in Texas?
Even if none of the above defenses apply to your case, dismissal may still be possible through pretrial diversion. Travis County offers a pretrial diversion program for eligible first-time DWI offenders. If you complete the program which typically involves supervised probation, alcohol education classes, community service, and regular check-ins the charges are dismissed and you may be eligible to have the arrest expunged from your record.
Not everyone qualifies. Eligibility depends on your criminal history, the circumstances of the offense, and the prosecutor’s assessment. An attorney dramatically increases your chances of being accepted into the program.
What Happens If Your DWI Cannot Be Dismissed?
Even when outright dismissal is not possible, an experienced DWI attorney can often negotiate a reduction to a lesser charge such as obstruction of a highway which carries significantly lower penalties, does not count as a DWI for enhancement purposes on future charges, and in some cases can be expunged.
The difference between a DWI conviction and an obstruction plea can mean the difference between keeping and losing your job, your professional license, and your driving privileges.
Frequently Asked Questions
What are the chances of getting a DWI dismissed in Texas?
It varies widely by case. Cases with illegal stops, breathalyzer issues, or procedural errors have strong dismissal prospects. First-time offenders with no aggravating factors may also qualify for pretrial diversion leading to dismissal. An attorney needs to review the specific facts of your case to give you an honest assessment.
How long does a DWI case take in Travis County?
Most DWI cases in Travis County take 6 to 18 months from arrest to resolution, depending on whether the case goes to trial, the court’s docket, and how complex the evidence is.
Will I lose my license if my DWI is dismissed?
Not necessarily but you must act within 15 days of your arrest to request an ALR hearing to contest the administrative license suspension. This is a separate process from the criminal case. An attorney can handle both simultaneously.
Should I plead guilty to get it over with?
No not without first having a board-certified attorney review the evidence. Many people plead guilty to charges that could have been dismissed or reduced, not realizing the long-term consequences to their record, their license, and their career.
Talk to an Austin DWI Defense Attorney Today
If you or someone you know has been charged with DWI in Austin or Travis County, do not assume the outcome is decided. The evidence against you may be weaker than it appears and Brian Erskine has the experience, the board certification, and the trial record to find every opportunity in your case.
Call 512-359-3030 today for a free, confidential consultation. There is no obligation and no pressure just an honest assessment of your case and your options.