We have a DWI-accidnet case coming up. We have the complainant and a passenger who can "wheel" the defendant and who called the police. They also witnessed the SFSTs and the passenger is a lawyer that knows about SFSTs. The passenger says that she thinks the defendant failed the SFSTs and is intoxicated. We also have the intox room video where the defendant cannot properly say her ABCs. BUT we do not have the arresting officer who actually did the SFSTs and arrested the defendant. He has retired and moved.

Is there anyway we can make the case without the arresting officer?

I assume there is no video at the scene? What I would do is find my best, most knowledgable DWI officer and have him review the entire case file including details given by the civilian describing the FST's at the scene. I would also have the officer review the video tape. Then I would call that officers as an expert witness to give an opinion on the Defendant's intoxication. We are all acustomed to having officers testify to FST's in these cases but an articulate civilian witness can be as or more credible in the right case.

I would hire Texas Super Lawyer Richard Alpert to portray the missing officer.

If you have a civilian witness who can testify that the person was driving and was intoxicated at the time, that is all you need for a conviction, assuming he is believed by the jury. He may also be able to lay the predicate for your tape if he can testify that he was present during the entire taping process and the tap accurately depicts what occurred.

I agree with Richard, a good civilian witness is a leg up in any DWI case. You'd rather have the officer, too, but your civilian is actually more likely to be able to testify that the defendant was under the influence because he's been around him when he was sober, or even better, as he became intoxicated that very evening. The officer almost never can say that.