Avoid a DUI

After the events of last night, I thought I would pass on some invaluable advice I was given about helping avoid a DUI arrest.

I was waiting in the lobby for a job interview with another guy a while back. He was obviously nervous and I guess felt the need to talk to calm his nerves.

He told me he was worried he wouldn't get hired because he had a DUI. He gave me the whole background story of the arrest including what his lawyer told him he SHOULD have done.

Last night was the first time I had to put his advice into action but it seems sound and it worked for me last night.

First, DON'T DRINK and DRIVE. Its dangerous. Its foolish. I was actually almost killed by a drunk driver last year who passed out and hit me at 60mph while I was stopped at a red light. It sent me under a truck and totalled my 5 week old vehicle. Trust me, it sucked.

However, if you have been drinking even a small amount and get pulled over under suspicion of drunk driving, you need to know how to act. A friend of mine just a month ago got arrested for DWI (not DUI) for blowing a .04 BAC which is technically under the legal limit but the officer thought that he was driving erratically so he was arrested anyway and now has to fight it in court.

When pulled over after even one drink, this guy's lawyer suggested the following:

(caveat, I am not a lawyer. I am not providing legal advice. I am merely repeating advice someone was given by a lawyer)

- Be very courteous and polite to the police officer
- Give him or her your license and proof of insurance as required
- Then respectfully decline to communicate further until you can talk to a DWI lawyer. That is it. Don't talk. Don't conduct any of the tests. Don't breathe into the breathalizer. Don't cooperate. Just ask to speak to an attorney to discuss whether you should take a breathalizer test or not.

If you participate in any of the field tests and you are caught on camera staggering or not looking sober, this will be used against you in court. If you are heard on the microphone slurring your words, this will be used against you. So, don't perform the stupid human tricks. Don't explain yourself.

So don't walk. Don't talk. Ask for your lawyer and then shut up. If the cop arrests you for refusing to take a breathalizer test, then quietly go along. Just be sure you have asked to speak with a lawyer first so that this can be used in your defense.

Be prepared to be pressured to perform. The officer can and may arrest you for refusing to take a breathalizer because in Texas, you are violating the "Implied Consent" law.

You should be prepared in case this happens to you. Carry a lawyer's number in your car that can be called 24 hours a day.

I have a prepaid legal service that has given me a card to present that gives notice to a police officer that I respectfully request to speak with my lawyer before being arrested or detained. It has a 1-800 I can call 24x7 for legal aid.

Here is some advice gathered from various Texas lawyer websites:

http://www.dwiattorneyhouston.com/index.cfm/MenuItemID/107.htm#8

What constitutes intoxication?

The Texas Legislature defines intoxication in two ways:

not having the normal use of your mental or physical faculties by reason of the introduction of alcohol or drugs (legal or illegal) into your body; or
Note: This means that you can be arrested even if your blood alcohol content is less than .08.

having an alcohol concentration of 0.08 or more.

The prosecutor must prove only one of these definitions to obtain a guilty ruling in a DWI trial.

Can I refuse a breathalyzer, urine test, or blood test? If so, should I?

Yes, you can refuse to submit to a breathalyzer, urine test, or blood test. However, by refusing these tests you violate the implied consent law, which states that by driving a motor vehicle on a Texas roadway you already consented to chemical testing. Therefore, your driver's license may be suspended and charges may be assessed against you. Also, your refusal can be used as evidence against you at trial.

Can a police officer force me to take a breathalyzer, urine test, or blood test?

A police officer can only force you to take a breathalyzer, urine test, or blood test if the four following requirements are met:

- there is a DWI arrest and an accident;
- the officer has a reasonable belief that any individual has died or will die as a result of the accident;
- an individual, other than the person arrested, has suffered serious bodily injury; and
- the individual arrested for DWI refused to give a specimen voluntarily

Can I refuse a field sobriety test? If so, should I?

Yes, you can and should always refuse to take a field sobriety test. Field sobriety tests are proven inaccurate at determining if alcohol concentration exceeds 0.08, even under ideal laboratory conditions. There are no penalties for declining these tests, but the officer may still arrest you for DWI if he believes he has probable cause. Moreover, the police officer may consider your refusal as an admission of guilt.

How long can my driver's license be suspended if I refuse a breathalyzer, urine test, or blood test?

If you refuse testing, the DPS suspends your driver's license for 90 days unless you request and win an ALR hearing, or you are found not guilty at trial.

Is there any way I can drive legally while my driver's license is suspended?

Yes, you can obtain an occupational driver's license by petitioning the court, unless you have a commercial driver's license or have obtained an occupational driver's license in the last ten years.

http://www.1-800-dial-dwi-west-texas.com/13.shtml

MOTION TO EXCLUDE TEXAS DWI EVIDENCE OF REFUSAL TO TAKE CHEMICAL TEST BASED ON INVOCATION OF TEXAS DWI RIGHT TO ASSISTANCE OF COUNSEL
TO THE HONORABLE JUDGE OF SAID COURT:

Now comes Texas DWI Defendant in the above-styled and numbered cause, and respectfully moves this Court to exclude evidence of the defendant's alleged refusal to take a Texas DWI chemical test to determine alcohol content in his body, and for good cause shows the following:

1. On or about January 15, 2005, the Texas DWI defendant was arrested for Texas DWI Driving While Intoxicated, 3rd offense and taken to the Lubbock County Jail. The defendant was then interrogated and asked to take a breath sample to determine the alcohol content in his body.

In response to the request, the defendant asked to speak to a Texas DWI lawyer. The Texas DWI defendant's invocation of his right to assistance of counsel was denied.

2. The Texas DWI Defendant had a right under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article 1, Sections 10 and 19 of the Texas Constitution to consult with a lawyer. The refusal to allow the defendant to consult with a Texas DWI lawyer also violated his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966); Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L.Ed.2d 378 (1981).

3. When the Texas DWI defendant's refusal to submit to a Texas DWI breath sample is based upon a request for assistance of Texas DWI counsel in deciding whether to submit to chemical testing, the defendant's refusal should be suppressed. A defendant's invocation of his right to an Texas DWI attorney cannot be used as evidence of or inference of guilt. See Rule 513(a), Tex R. Crim. Evid., Bruno v. Rushden, 721 F.2d 1193 (Th Cir. 1983). It is improper to inform a jury of the Defendant's exercise of his constitutional rights. Gathright v. State, 698 S.W.2d 260 (Tex. App. - Fort Worth 1985); Rezac v. State, 722 S.W.2d 32 (Tex. App. - Dallas 1986).

4. A request for Texas DWI counsel demonstrates that the Texas DWI defendant was able to understand his rights and was not incoherent, confused, or unbalanced. A refusal to submit to chemical testing premised on the defendant's request for counsel has no probative value with respect to guilt and should not be admitted as evidence. See TRE 401, Wainwright v. Greenfield, 106 S.Ct. 634, 642 (1986).

http://media.www.dailytexanonline.com/media/storage/paper410/news/2001/10/23/Opinion/Ask-A.Lawyer-504573.shtml

You've been drinking. You're driving. You see red and blue lights whirling in the rear view - cops. As you pull to the side of the road, a crucial question comes to mind:

Do you take the Breathalyzer test or not? Here are some facts to take into consideration when making this decision:

You have the right to refuse to take the Breathalyzer test. Refusing to take the Breathalyzer test does have consequences, however. In fact, during the most recent legislative session, the penalties for refusal have been increased: The Texas Department of Transportation will now suspend your license for 180 days. The suspension will take effect 40 days after you have received notice of the suspension.

Also keep in mind that a court can still convict you based on other facts. Just because there is no evidence as to your exact blood-alcohol level, the state may still make its case by pointing out your appearance and behavior at the time of the arrest. Refusing to take the Breathalyzer test does not mean that you can't be convicted for DWI.

On the other hand, if you take the test, and your blood-alcohol level is above the legal limit, .08 percent, the consequences may be much worse. A first-offense DWI is a Class B misdemeanor, which carries a minimum jail term of 72 hours and maximum term of 180 days. Additionally, you may be fined up to $2,000, charged for court costs, and required to attend alcohol awareness classes. Probation usually lasts two years.

These penalties increase for repeat-offenses. In light of these considerations, you might find it advisable to refuse to take the Breathalyzer test, particularly if you suspect your blood-alcohol level is above the legal limit. The inability to drive is an inconvenience; a DWI conviction, meanwhile, leads to some significant financial burdens and a criminal record.

http://www.oag.state.tx.us/opinions/op47mattox/jm-0959.htm

Article 67011-5, V.T.C.S., governs the administration of breath tests and the suspension of licenses for refusal to take the same.

Section 2(b) requires that an arresting officer advise a person arrested for driving while intoxicated that refusal to submit to the test may result in the driver's license being automatically suspended for 90 days.

Section 2(d) requires the arresting officer to immediately make a report to the Department of Public Safety if the person refuses to submit to a breath test.

Section 2(f) provides that upon receipt of the report the director of the department of public safety shall suspend the person's license for 90 days and notify the driver of the suspension.

http://www.duianswer.com/faq.cfm#faq1165

Q: When I get pulled over, do I have to answer the officer's questions?

A: At some point after the officer has asked for your license and registration the officer he will ask you if you have consumed any alcoholic beverages. It is perfectly within your legal rights to politely refuse to answer the questions. The officer might still decide that he has enough reason to arrest you, but simply refusing to answer the question is not reason enough. However, the downside of refusing to answer the officer’s questions is that you will look suspicious, which is why, if you have not had anything to drink, the best idea is usually to simply say so.

Q: Can I refuse to take a field sobriety test?

A: Yes. You have the legal right to refuse to take a field sobriety test, even if the officer does not ask your consent. A good way to refuse taking a field sobriety test—or anything that a police officer asked you to do—is to say, “I’d like to speak to an attorney first.” However, the reality is that if the officer has asked you to perform a field sobriety test he has probably already decided to arrest you.

Q: Can I refuse a roadside breath test?

A: Just like the field sobriety test, you have the legal right to refuse to take a PBT. However, you are also more likely to be arrested if you refuse to take the test.

Q: Why am I being charged with two crimes?

A: In many states there are two seperate crimes, one for driving with a blood alcohol level above a certain limit, and one for driving while impaired. There are two seperate crimes because comitting one doesn't necessarily committing the other. The first is usually called DUI ("driving under the influence") and the second OWI ("operating while intoxicated") or DWI ("driving while intoxicated").

Q: What is Implied Consent?

A: Implied Consent means that, if you drive a car, you have automatically agreed to a blood alcohol test at the police station. There are Implied Consent laws in nearly every state, which make license suspension the penalty for refusing to take a chemical test.

Q: Isn't everyone arrested for a DUI guilty?

A: Absolutely not. We call this "The Guilt Myth." There are countless ways in which a person could be falsely accused. Field Sobriety Tests and breathalyzers, for example, are extremely unreliable. When having a blood alcohol level of 0.08 is a crime and 0.079 is not, and when alcohol absorption is a time-sensitive process that varies with a person's metabolism, a false accusation is real possibility that countless Americans have been the victim of. The notion that everyone who is accused of a DUI is guilty is a damaging myth that even some lawyers believe. No attorney who believes this myth, however unconsciously, is qualified to represent you. If you believe you are innocent of the charges against you, you need to find an attorney who will will fight to prove just that.