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Advice: Exercise your rights when you're pulled over

Chris Perri

As a criminal defense attorney, the most common question that people ask me is: “What do I do when a cop pulls me over for a DWI?” My first response: “Hopefully, you haven’t been drinking.”

But the reality is that drinking alcohol and driving a vehicle is not illegal under the laws of Texas. Instead, it’s illegal to drive while intoxicated, which means having lost the normal use of your physical or mental faculties, or having a blood-alcohol concentration (BAC) of .08 or more.

There’s not a single right answer to the question of how you can “get off” of a DWI. However, how you conduct yourself during a police officer’s investigation will greatly influence the ultimate outcome of your case.

There are three general categories of people who are investigated for DWI: (1) the totally sober, (2) the people who have had a couple of beers (or about a drink per hour) during their night out, and (3) the people who are definitely intoxicated.

Let’s consider each case.

The Sober Driver

If you haven’t had a drop of alcohol all night, you should cooperate fully with the police officer who stops you. Be honest when the officer asks you questions. If the officer asks you to step out of the car and begins to instruct you to perform sobriety tests, go ahead. At the end of this examination, the officer will give you the opportunity to take a breath or blood test. Go ahead and take the breath test. It should be .000 if you haven’t been drinking. If, for some reason, the breathalyzer shows the presence of alcohol, ask for a blood test, as they’re more accurate.

But in my experience, officers know when someone’s completely sober, so a DWI investigation likely won’t even begin in this situation. Instead, you’ll probably be cited for whatever traffic violation led to you being pulled over, and then you’ll be on your way.

The Driver Under the Influence

Unless you’re under 21 years old, it’s not illegal to drive while under the influence of alcohol, as long as your BAC hasn’t gotten up to .08. But if you’ve had a few drinks, it’s very hard to know whether you’ve reached that point. The following chart can be a useful guide:

However, in my experience, clients have difficulty determining their exact BAC, as it's hard to keep an accurate count of the number of drinks consumed and total time spent drinking. For this reason, it’s very important that you refuse to take a breath or blood test. If either of these tests shows that your BAC is at .08 or higher, the likelihood of the prosecutors dismissing your DWI charge becomes almost zero. Instead, if you want to fight the case, you’re going to have to go to a jury trial, where a jury will hear scientific evidence about the validity of the machine that recorded your BAC level. While I’m confident that I can cast doubt on a test that’s between .08 and .10, it’s a difficult hill to climb; plus, you’ll end up spending a lot of time and money that you might have saved if you had just refused to blow.

Regarding field sobriety tests, most people don’t realize that these are entirely optional. A police officer cannot force you to do these tests. Of course, the officer will say that you gave your consent to do the tests when you signed up for your driver’s license, but that doesn’t really mean anything.

I suggest that you refuse the field sobriety test if you have any doubt about your sobriety. There are three commonly used tests, all of which are recorded on videotape: (1) the horizontal gaze nystagmus, (2) the walk-and-turn, and (3) the one-leg stand.

The first test is highly subjective, as it’s the one where an officer asks you to follow a stimulus (a penlight or finger), and the officer records whether your eye makes an involuntary jerking called a “nystagmus.” Everyone has a nystagmus, but a drunk person apparently has a more distinctive nystagmus than a sober person. Almost every officer will record that you exhibited a distinct nystagmus, which indicates intoxication. Since the video camera doesn’t zoom in on your eyes, there’s no way to contest whether you really exhibited this distinct nystagmus.

The second test is the walk and turn, which is really a divided attention test. The officer gives you a confusing series of tasks to perform, and it’s very easy to exhibit “clues” of intoxication. For example, you may feel like you’re ready to perform the test, but if you start before the officer tells you to begin, then that’s a “clue.”

The final test asks you to stand on one leg, with your hands at your side, for 30 seconds while counting aloud. It’s difficult for many sober people to do this without wobbling around before they regain their balance. If you raise your arms for balance, that’s another “clue” of intoxication.

The problem with refusing these tests is that you’ll be arrested for DWI, as officers don’t like it when people don’t cooperate with them. The videotape of the field sobriety tests is usually the only evidence of a defendant’s intoxication, so the officers try to make it as difficult as possible to refuse. They’ll even tell you that you have a chance to go home instead of jail if you just cooperate. That’s a lie. Once an officer asks you to perform field sobriety tests, s/he’s already determined that you’re getting arrested for DWI. You’re better off cutting your losses and spending a night in jail without giving the prosecution further evidence.

Of course, you’ll be asked why you’re refusing the tests. DO NOT say: “Because I’m drunk.” Really, that’s happened before, and the prosecutor will take the case to a jury to get a conviction, pointing to this statement as evidence of your guilt. Instead, say: “On the advice of my attorney, I’m refusing all tests.” If the officer continues to inquire, give the officer your attorney’s business card, and say that the officer can call the lawyer if the officer wants to find out the reason you’re refusing. (The back of my business card explains that I've advised my client to refuse tests, so if you have one of these, there's even less of a need to justify your decision to the officer).

It’s true – my advice is to exercise your constitutional right to decline to provide evidence that could be used in a prosecution against you.

The Drunk Driver

If you’ve had more than a beer per hour during your drinking span, you’re intoxicated. That means you’re probably slurring your words when you talk, and you smell like alcohol. In this case, you want to minimize any evidence that the investigating officer can acquire. When you’re asked questions, respond with a simple “yes” or “no.” If the questions require more of a response, limit your answers as much as possible. The conversation is being audiorecorded, and you want to minimize evidence of your slurred speech.

Of course, you’ll be asked why you’re refusing all tests. Just say: “My attorney said so.” Give the officer my card, and shut up.

Also, remember that you’re being recorded while you’re on the way to jail. Find a spot on the floorboard and stare at it. Don’t fall asleep. Try not to vomit. Don’t talk to the arresting officer anymore. You might think you sound smart when you’re drunk, but believe me, you’ll regret what you say when you look back at the video.

What about my license?

Once you’re arrested for a DWI, the Department of Public Safety (DPS) will suspend your license. If you failed a breath or blood test, then the suspension is for 90 days. If you refused the test, your suspension is 180 days. However, in Travis County it’s easy to get an occupational driver’s license, which allows you to continue driving to work or school (as well as other essential functions). This suspension is completely separate from your criminal case. In my opinion, saving 90 days of a suspension by consenting to the breath/blood test is a bad idea because failing one of these test makes a criminal conviction much more likely. Remember, a criminal conviction for DWI results in having to pay $1,000 per year for three years just to keep your driver’s license, so you want to do whatever is necessary to avoid this result.