I've Been Pulled Over for Suspicion of DWI!! What Are My Rights?!
You're leaving a fun-filled evening of dinner and drinks with good friends. You felt fine to drive home when you grabbed your keys and walked out of the Uptown pub, a decision you'll regret drastically in a few moments. Earlier in the evening, you parked near that fateful intersection of Routh and McKinney, where a nondescript sign reads "No Right Turn After 5pm," an instruction that you never even noticed before. Of course, you make the illegal turn, and to your surprise, piercing white light shines into your mirror, and blue and red lights flash behind you.
You immediately pull over and grip the steering wheel with both hands, your knuckles red, your fingers white. Your first thought is undoubtedly, "Oh $%&*!", followed closely by "How much did I drink again?" and "Why in the &$%* didn't I text Uber or call a cab?!" The officer, hoping to catch you off guard, doesn't waste any time writing down information - as soon as both cars are stopped, she comes straight to your window. Now is when things get tricky.... You wish you had your lawyer on speed dial (why don't you, by the way?), because you'd ask him these questions: Do I have to do the field sobriety tests? Do I have to blow into the breathalyzer? What happens if I don't? What is going to happen to my car? We answer these questions and more here in this blog entry.STEPS TO PREPARE FOR THE CONVERSATION WITH THE OFFICER There are a few things you can do to put the officer at ease and show him or her that you are being cooperative and non-aggressive before he/she even approaches you. These steps will absolutely NOT give you a free pass out of a DWI, but they will at least show the officer that you are of sound mind enough to be polite and respectful.
1. Turn on the overhead light in your car so the officer can see you. 2. Have your insurance slip readily available, and pull it out before the officer gets to your window. Otherwise, keep both of your hands visible (don't go digging under the passenger seat or in the glove box, as the officer could assume you're looking for a weapon or hiding something). 3. Hold your driver's license and the insurance slip in one hand where the officer can see it. 4. When the officer approaches your car, roll your window down to greet him/her. YOU'VE BEEN DETAINED - DO YOU HAVE THE RIGHT TO AN ATTORNEY? The young officer shines a flashlight in your car and stands a step behind the door. "Good evening, sir," she says curtly, "You made an illegal turn back there. Have you been drinking tonight?" REMEMBER that anything you say or do can be used against you. It's always advisable that, when you're being investigated for a crime, you have a lawyer present. In Texas, your right to an attorney does not attach until you are formally arrested or placed in "custody." At this point, you're simply being detained, so you're not yet entitled to a lawyer, but it doesn't hurt to ask for a lawyer to see what the officer says in response. The response could be very important if she misrepresents what the law is to you and could ultimately be used to impeach her at trial. DO I HAVE TO TELL THE OFFICER THAT I HAVE BEEN DRINKING? If you haven't been drinking, then say so. But in this scenario, since you have been drinking, there is no perfect answer to the officer's question. If you say you haven't, and then a blood test later confirms that you have been, you will look like a liar, which juries and judges hate passionately. If you admit to drinking, that will open the door to a series of other questions. If you refuse to answer the question (stating that you won't answer any questions until your lawyer is present), the officer will likely assume you have been drinking, and proceed accordingly. I believe that if you've had a drink or two, there is nothing wrong with admitting it to the officer. Some lawyers would disagree, but in my experience, most reasonable people would suspect that people leaving a pub after dark have had a drink or two, so saying so isn't the end of the world. If you've had more than a couple of drinks, you should respectfully decline to answer in a polite and courteous manner. Remember that the officer DOES have the right to certain information, such as your (1) name, (2) address, and (3) date of birth. But at this point, your answer to the officer's questions about drinking may incriminate you, so you should refuse to answer until you have a lawyer present. Your answers to her questions, while important, are often overshadowed by the officer's observations. During this line of questioning, the officer is looking for clues of intoxication. She stares at your eyes - are they bloodshot? Are you slurring your words? Is your car or shirt in disarray? Did you have trouble opening your wallet or finding your license? And, of course, the ever-subjective test . . . whether the car smells like alcohol or not. Based on these factors and your response to her questions about drinking, the officer may ask you, "Please step out of the car, sir." FIELD SOBRIETY TESTS The officer suspects that you may be intoxicated, and she wants to put you through some FSTs. She doesn't ask you, "Do you want to participate in a few voluntary field sobriety tests (FSTs)?" She simply commands you to, "Stand straight up and look into the white light, and follow the light back and forth" or something like that. This is the beginning of the Horizontal Gaze Nystagmus (HGN) test - science suggests that alcohol consumption hinders the ability of the brain to correctly control eye muscles, which causes the eye jerk or bounce associated with HGN.
But we're not getting into the science of FSTs today. The real question is whether you need to participate or not. Technically, you are not legally required to participate in FSTs. She can't force you to take the HGN test, to do the one-legged stand, to count or say the ABC's backwards, to walk back and forth on an imaginary line, or to take a breath or blood test. If you believe you are sober and can pass the tests, take them, because your refusal can be used as evidence against you at trial. If you feel you may be intoxicated, politely refuse and explain that your lawyer does not recommend you taking any tests without him being present. We always tell people that unless you're sure you're sober, refuse the tests. They are designed for failure, you don't get the chance to practice, and you don't even know what clues the officer is looking for. We tell our clients that refusing these tests is the wise thing to do to protect you down the road, keeping in mind the prosecutor will have to prove that you're guilty (you don't have to prove that you're innocent). Without evidence of a FST, the State's burden becomes much harder. WHAT ARE THE CONSEQUENCES FOR REFUSING A FIELD SOBRIETY TEST? That's the big dilemma you're facing. Unfortunately, at this point, your chances of going to jail are high. If you do the FST, you're going to jail because you're going to fail. If you don't do the FST, you're going to jail for refusing it. Even worse, in Texas, drivers are required to submit to a blood or breath test upon the request of a police officer, and if you refuse, your license is automatically suspended. You're looking at a driver's license suspension of 6 months to 2 years when you refuse a breath test. And the suspension will, in most cases, be upheld even if you are subsequently found non guilty of the DWI charge. But if you blow over 0.08, then you're also looking at a license suspension. WHAT'S "NO REFUSAL" WEEKEND? AND WHAT'S THE DEAL WITH AUTOMATIC BLOOD DRAWS? You refused to participate in the FSTs and didn't blow into the breathalyzer. But the officer is on a mission to determine your BAC level. Therefore, she seeks a search warrant to draw your blood. Understand that "No Refusal" weekends are not anything special. On these weekends, like all other weekends, you may still refuse to answer questions and participate in FSTs. And like all other weekends, officers may still seek a search warrant from a judge to draw your blood. Here is how this works: When you refuse a breath test and refuse to consent to a voluntary blood draw, the officer must detail probable cause on a search warrant and seek approval from a magistrate judge. Obviously, if you participate in any FSTs, that's one way to get probable cause. The other factors I mentioned earlier (bloodshot eyes, odor of alcohol, etc.) are also common factors used on search warrants. Once the officer obtains the warrant, she will take you to a local hospital, or in some cases, one of the local jails. They will sit you down in a chair, strap you in, and take your blood against your will. Sometimes, they will test the blood at the hospital or send it to DPD or to a DPS crime lab. My personal belief is that this forced blood draw is a violation of your right to privacy. If you don't have to take a breath test or participate in FSTs, then the State should not be allowed to draw your blood. But if the officer thinks she has enough probable cause to obtain the warrant, she's going to do it anyway. And there is nothing you or I can do about it. Our option at that point is to take the warrant to a judge and fight it. Sometimes we win these fights, and sometimes we lose. BOTTOM LINE DWIs are expensive. They wreck havoc in your life. The arrest is an unpleasant experience. And it goes without being said drinking and driving are not two actions that should ever be done together. Use a designated driver or text Uber or a friend if you're not able to drive. And always keep your lawyer on speed dial.