If you live and Texas and aren’t a teetotaler, chances are at some point, you will be behind the wheel of a vehicle after having had a drink – or several. Contrary to DPS propaganda that would like you to believe that the law is as simple as “Drink, Drive, Go To Jail,” drinking and driving is not illegal. It is only illegal to be behind the wheel of a vehicle if you are legally intoxicated. In Texas, intoxication is defined as having a breath or blood result of .08 or higher or not having the “normal” use of your mental or physical faculties. The reality is that if you find yourself in the middle of a DWI investigation, there is a high likelihood you will be going to jail regardless of whether you are intoxicated. Many police officers are incentivized to err on the side of arresting a suspect in a DWI investigation. Below are five things you will want to understand before you find yourself pulled over and the target of a DWI investigation:
- It is always “no refusal weekend” in many cities
“No refusal” weekends started several years ago as a means of enforcing DWI laws, particularly on weekends known as big party weekends. What “no refusal” means is that if you are pulled over and arrested for DWI, the police will obtain a search warrant if you refuse to voluntarily give breath or blood. This means that one way or another, the police will get a sample from you. In Houston, as well as many other major cities, the “no refusal” policy is essentially in effect all the time. The Harris County District Attorney’s Office will assist the police to obtain a warrant 24 hours a day in refusal cases. In Houston, this process has been streamlined such that it is not uncommon for the police to obtain a warrant and draw the blood of a suspect in less than an hour.
Prior to “no refusal” it was common to see what DWI attorneys refer to as “no test” cases. Even though you can be shown to be intoxicated without a scientific result, that is much more difficult, and many of these cases resulted in dismissals or acquittals in Houston and other cities. Interestingly, in many smaller or medium-sized counties, the police still may not obtain a search warrant if you refuse.
- You can always refuse! But perhaps you shouldn’t…
“No refusal” appears to be intentionally misleading. A suspect in a criminal case can always refuse to speak to the police, permit a search of his person, car, or home, or give a blood sample. But is this the smart play? One of the most common questions DWI attorneys get is whether or not “to blow.” There are several things to consider before answering this question. The first is what we just discussed – the policy of “no refusal.” If you refuse to blow in a large city like Houston after being arrested for DWI, you can be assured that the police will obtain a search warrant and obtain your blood. This likely puts you in a worse situation than if you had agreed to give breath for several reasons.
The first is that blood is superior evidence to breath. Breath testing is notoriously inaccurate and subject to many errors that blood testing is not subject to. Blood testing is much more reliable than breath and more difficult for your attorney to beat in court. So by refusing, the net effect is that the police and District Attorney end up with better evidence to use against you at a trial.
Also, at the trial, if you agree to blow, your criminal defense attorney will be able to argue that you had nothing to hide – that you cooperated with the police because you are not guilty of DWI. By the same token, if you refuse, the District Attorney’s office is permitted to argue that a jury should draw an inference of guilt from your refusal.
Finally, if you refuse, you are subjecting yourself to a longer potential driver’s license suspension. Almost all DWIs in Texas have a companion case known as an Administrative Driver’s License Revocation case. If you are arrested for DWI and give a sample higher than .08 or refuse, then your driver’s license will be subject to suspension. However, the suspension for a refusal is 180 days, whereas the suspension for a failure (a result over .08) is 90 days.
In short, by refusing to blow, you may be creating a stronger case against yourself by giving the police blood instead of breath and subjecting yourself to a longer suspension. Although many criminal defense attorneys cringe at the idea of consenting to any request from the police, in this instance, agreeing to a breath test is probably the smart play.
- You can – and should strongly consider – refusing police balance tests
A standard part of a DWI investigation is the Standardized Field Sobriety Tests (SFSTs). These tests include the horizontal gaze nystagmus test (the so-called “eye test”), the walk and turn, and one-leg stand. These tests are “standardized,” meaning that they are administered and scored the same way. If you refuse to perform one or all of the tests, there is a good chance that you will be arrested. On the other hand, if you decide to consent to the tests, there is a good chance you will fail even if you are sober, since they are extremely difficult to pass, in which case you will be arrested anyway!
Out of the three tests, the one that is by far the most suspect is the horizontal gaze nystagmus test. This test is supposed to look for involuntary jerking of the eye that is thought to be present when alcohol is concerned. There are several problems with this test. The biggest problem is that your criminal defense attorney will never be able to question whether nystagmus was truly present. Although most DWI investigations are recorded, we can’t see jerking in the eye on video because the video is not detailed enough. So we are in a position of taking the officer’s word for it. DWI attorneys know that almost all DWI arrests claim to see the maximum amount of nystagmus (6 indications) in a suspect’s eye. At trial, officers will often try to testify that HGN is the “most accurate” (although a smart DWI lawyer will prevent them from doing so). For these reasons, I might consider refusing the HGN, but consenting to the walk and turn and one-leg stand tests.
Without going into too much detail, the walk and turn and one leg stand tests are balance tests that also test your ability to follow directions *exactly* as instructed. Even if your balance is perfect and you do not stumble, you can still easily fail these tests. I am very familiar with these tests and am actually certified to administer them. Therefore, I believe that I can pass them (even after a couple of beers). If you feel like you may have had too much to drink and that your balance is questionable, it may be best to refuse these tests since the tests may accentuate your poor balance. However, if you feel sober and calm, I recommend consenting to these tests, but listening extremely carefully to the officer’s instructions. Do not be afraid to ask the officer for clarification on the way that you are being asked to perform the tests (don’t be afraid to annoy the officer!).
- Be careful of what you say.
In Houston, the vast majority of officers now have body cameras. This means that everything you say or do will be recorded. The officer will do his best to get you to make incriminating statements about how much you drank, or try to elicit statements from you to make you seem confused or disoriented. Again, if you refuse, to answer any questions, you may simply be arrested. Whether keeping quiet is the correct approach or not depends on your level of intoxication. If you feel that you have had too much to drink, it is best to stay quiet and simply request an attorney. Do not argue with the officer. Do not plead with the officer. Calmly and clearly request an attorney. You might choose to tell the officer that you are willing to comply with all his tests and answer all of his questions if he provides you with a criminal defense lawyer.
If you choose to speak to the officer, answer questions simply. You should be truthful, but you should be aware that admitting to anything more than two drinks is probably harmful to your case. If you have had alcohol, it is usually not a good idea to deny drinking, since the officer may be able to smell it (and later on lying about not drinking may be used as evidence of your guilt in a potential DWI trial). Be careful of trick questions such as rating your level of intoxication from 1-10.
- Know how to estimate your BAC
Although it isn’t illegal to drink before you drive, it is always a good idea to avoid driving if you have any amount of alcohol. But the reality is that many people – at some point – will get behind the wheel after drinking a questionable amount. One way to make smarter decisions is by having an idea of how the alcohol you have consumed might affect your blood alcohol content (BAC).
There are calculators online that can help you estimate how many drinks it would take to get you to the legal limit. A standard drink is considered to be one beer or glass of wine (beware of high alcohol beers like double IPAs), or one standard shot. For “normal” size men, the rule of thumb is that one drink gets a man to .02. Therefore, four drinks are needed to get to a .08 but the reality is more complicated as you are burning off drinks. In other words, if the drinks are consumed over several hours, an average size male would need more than four drinks to get to a .08. For biological reasons, a woman needs less alcohol to get to the legal limit than a man weighing the same. Having an idea of how much it would take you to reach the legal limit would help you limit your drinking or driving if you estimate that you might be over the limit.
Attorney Jose Ceja is a former prosecutor who has handled thousands of DWIs in his career. He regularly represents clients throughout the Greater Houston area, including Harris County, Fort Bend County, Brazoria County, Montgomery County, Liberty County, and Chambers County. Call today to schedule a free consultation.