I have a DWI where I believe the defense will be involuntary act, namely, someone slipped a drug into the defendants drink.

The defendant is driving on a flat tire, she's stopped, and she is intoxicated - admits to being drunk and says shes had 2-3 drinks. After bonding out, her attorney claims defendant can't remember anything between her last drink and ending up in jail. No mention of this at the time of arrest. Defendant refused breath. No warrant, no blood, no toxicology. This is the defendant's 2nd DWI.

I recently obtained the defendant's prior DWI police report from about 12 years ago. In that report, the defendant is speeding, is pulled over, admits to 2 glasses of wine, says she's lost and tells officers she can't remember what happened for the last 4 hours. She provides a breath test and its like .24/.25.

The officer doesn't remember what happened 12 years ago. No video of the old arrest.


I'm pretty sure the defense is not about intoxication. We both agree she is intoxicated. However, I think the defense will have to put the defendant on the stand to at least try to get some kind of involuntary act instruction.

Assuming the defendant takes the stand and testifies that 2-3 drinks doesn't normally affect her memory/driving - wouldn't I be able to impeach her based on this prior occasion?

Would I call the officer on rebuttal and have him read from his police report as a recorded recollection?

Your best bet is probably "lack of mistake or accident" under 404(b). Remember, 404 is a rule of inclusion not exclusion...

Along those same lines . . . I'd also argue it's admissible under the "doctrine of chances." See De La Paz v. State, 279 S.W.3d 336 (CCA 2009).