Every social setting I’m in, this question always pops up, “what should I do if I am ever pulled over after drinking?” Everyone who has ever been to a bar or restaurant and had something to drink needs to know this answer. Particularly, when you consider the surge in the amount of blood search warrants being issued today in Austin, San Antonio, Burnet, and the Texas Hill Country to people suspected of DWI. What is equally interesting to me is the amount of different responses people have when I ask them what they think they should do. I’ve been told before that a person should always keep a penny nearby to put in their mouth in case they have to take a breath test! As someone who has experimented many times with the breath test machine in Texas, Intoxilyzer 5000, pennies don’t do anything to a breath test, plus they’re extremely filthy, and that can’t be a good thing to put into your mouth.
When considering the question of what to do, we must always remember the issues in a criminal case always hinge on what can the government prove. I like to point out to my clients that a jury verdict form has “guilty” or “not guilty”, with the latter meaning that the State didn’t prove their case and actual innocence of a defendant is not the issue. In keeping with this, let’s consider the following. You and your friends meet up after work for happy hour. You have 3 beers in two hours. As you’re driving home for dinner, you are stopped for driving 8 miles over the speed limit. As the officer approaches your vehicle, and you hand him your license, he asks, “Where are you coming from?”
At this point, the officer already knows you have been drinking and driving. He saw you speeding and he smells the alcohol on your breath. The answer to “where are you coming from” is the first question in his DWI investigation, and you are a suspect. Your answer of “happy hour with a couple of friends”, although true, doesn’t help diffuse the situation. That response will get you arrested, but to be honest, nothing you can say at this will likely prevent that from occurring any way. If you have been drinking, and you drive, then you are likely going to be arrested for DWI if you’re pulled over. That is the truth. That is the state of our society’s view towards drinking and driving. We have all seen the billboard, “Drink. Drive. Go to Jail.” In practice, in reality, this billboard statement is true. However, legally, it is one hundred percent incorrect. You have to be intoxicated before you’re doing anything illegal, but in order to determine if someone is intoxicated, the police have to make a number of subjective determinations. These determinations become his probable cause to arrest, and later to convict. The best way to beat a DWI is to take away the officer’s ability to make the subjective determinations.
The hard truth to DWI is that in order to be in the best position to win, you must first surrender. You have to realize that you are going to jail as soon as you see those lights in your rear view mirror, there is almost nothing to prevent it from happening once we’re at this point. Why? Because nothing you can say will help you. We have to prevent the officer from making the subjective determinations that will get you convicted of DWI. If you tell the officer you had 2 drinks, he will think you’re lying, if you tell him you had 4, he will think that’s too much for you to be driving because 4 drinks at .02 per drink is .08. If you do the Standardized Field Sobriety Tests, you will not pass them. You don’t get to practice, you don’t know what the scoring criteria is that he’s looking for, because he doesn’t tell you. These tests are designed for failure!
It is my opinion that the best thing for you to do when you’re suspected of DWI is to be polite, respectful, and completely uncooperative. What I mean by this is that you politely and respectfully answer the police’s inquisition of “where are you coming from” with “I don’t feel comfortable answering that question or any other questions, if I am not free to go then I wish to talk to a lawyer before I cooperate with you in any way further”. You don’t have a right to an attorney at this point, and you will be informed of that, but continue to insist on your position politely and respectfully. Follow police directions to get out of your vehicle and to stand over here or over there and be mindful that EVERYTHING is being videotaped and audio recorded. Refuse to answer the questions, refuse the field sobriety tests, and refuse the breath/blood tests. You will be arrested, but you will have taken away most of the officer’s subjective determinations, and will be well on your way to being in a position to keep a DWI off your record. Don’t be naïve in thinking that any of these tests are accurate and they will exonerate you. In the very few blood and breath tests that I’ve seen below a .08, the state was still prosecuting the defendants for DWI.
As soon as you are released from jail, call me, we have only a short time to try and save your license from being automatically suspended. If you are arrested in Travis County, call me immediately for a jail release.