By Collin County Criminal Defense Attorney Jeremy Rosenthal
Texas DWI arrests are like snowflakes in each and every case I’ve seen is unique. Different police officers think differently from one another and there is no one-right way to “get out” of a DWI arrest. Being cooperative and giving detailed explanations may work with some officers yet others will actually turn your helpful nature against you. Having seen hundreds of cases, I can tell you what normally helps and what usually makes things worse.
Here are the top 5 things you should do when being stopped or investigated for DWI.
5. Be Friendly and Courteous to the Officer (Remember, You’re On Camera!)
A DWI trial is a rare case where the juror actually identifies with the defendant as much or more than the officer. Jurors, therefore, subconsciously wonder how they would act towards the police in your situation. The vast majority of jurors see themselves as being polite, friendly and cooperate regardless of how difficult the officer is being or what he asks the person to do. If you are a jerk or are mean to the officer, not only are you almost certain to be arrested, but the jury will dislike you as well.
4. Know Your Rights and Exercise them Wisely
You have the right to remain silent and you also have a right to refuse any of the field sobriety tests offered in the field. If you remain silent immediately after being pulled over, though, you’re daring the police officer to arrest you (and I promise he or she will find a reason). If you refuse the field sobriety tests, your refusal of the tests is not considered “testimonial” in nature and therefore the jury will know you refused the tests. Again, you run the risk of turning yourself into the bad guy before the jury.
If you’ve been arrested and mirandized then you should absolutely exercise your right to remain silent. They think you’re guilty and they’ll spin anything you say into confessions of guilt. Also remember you’re probably being taped the entire time. Don’t initiate conversations with the police in the station or in the police car.
3. If You Do The Standardized Field Sobriety Tests
There are three field sobriety tests in a standard battery created by the National Highway Traffic Safety Administration (“NHTSA”). The three tests are the horizontal gaze nystagmus (“HGN”), the walk and turn, and the one-leg stand. Rather than geek-out on the details of the tests and studies which validate tests which are conducted and graded correctly by the police, I’ll tell you a handful of truths about the tests.
First is if you get arrested — you can be positive the officer will say you failed the tests no matter how well you think you may have done. This is because officers — even well meaning ones — are biased graders. If they think you’re drunk when they first pull you over, you can be sure they’ll nit-pick your performance and find just enough fault to justify your arrest. It’s not dishonesty, it’s being human.
Second — and most importantly — jurors see the field sobriety tests as potentially unfair. Again, they tend to see themselves in your shoes on the side of the road. They know it’s an intimidating environment and they also wonder if they could do the tests themselves. The HGN is a neurological eye test performed and explained by a person who directs traffic when needed… jurors have a hard time understanding or believing HGN. As for the other two tests, jurors understand knee, back or weight issues make the tests hard… let alone doing the test with whizzing cars, flashing lights, or gusty winds acting as nuisances.
If you take the tests — you should be sure to tell the officer any medical or physical issues you might have which could affect the test. This could be knee issues, head injuries, back problems, broken bones etc. etc. etc… You can be assured the officer will let your medical problems go in one ear and out the other — but the jury will get to hear the problem and they will listen.
2. Be Skeptical of Representations the Police Officer Makes
My experience is police tend to make up their minds very quickly in DWI arrests then focus on substantiating their conclusion. Police, though, will never admit this and are trained to manipulate you into cooperating by taking additional test and answering additional questions.
Listen to police with skepticism. Though they could be sincere in wanting to cut you loose or let you call a friend — it’s just as likely they’ve got their fingers crossed behind their back.
“I just want to see if you’re okay to drive,” sounds to the listener like “I’m thinking of letting you go if you do okay on the test” but it isn’t. Also statements like “honesty goes a long way with me” or “I can’t help you if you don’t tell me whats going on” sound like the officers decision could go either way… but it’s possible the officer has already called the tow-truck.
1. Don’t Take the Breath Test
Texas Transportation Code Section 724.013 gives a person a right to refuse the breath test. The police may try to pursue a warrant for your blood, but this isn’t a certainty and they may not do the application properly.
The Intoxylizer 5000 is the current machine used by the State of Texas. Though I won’t geek out on it in today’s blog, I can tell you the concern of most experts I’ve worked with is it is simply too general. A person who blows a 0.12 might actually be as low as a 0.05 at the time of driving or as high as a 0.17.
Additionally, jurors tend to understand refusing the breath test even though they might submit themselves. They’ve head enough horror stories and they honestly don’t know how much alcohol consumption it takes to get them to a 0.08 either.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific situation you should contact an attorney directly.