All of your interactions with police will be recorded on cameras in almost every DWI traffic stop and arrest. There is often video of your vehicle speeding, swerving, or committing other traffic offenses. After the officer pulls you over, he will most LIKELY continue recording his interactions with you. You will probably be asked questions on camera, asked to perform field sobriety tests on camera, and then asked to agree to a breath or blood test. If you choose to fight your DWI charges, being polite in your interactions will go a long way with the jury at your trial. Remember that you are being recorded and that video could end up being played for a jury of your peers.
After an officer correctly or incorrectly suspects that you were driving while intoxicated he will likely ask you a variety of questions including:
- Where are you coming from?
- Have you been drinking tonight?
- How many drinks did you have?
- When was your last drink?
- When was your first drink?
- When did you eat?
- What time did you eat?
You have the absolute right not to answer any of these questions. All of your answers will be used by law enforcement to build a DWI case against you. An expert that works for the prosecution will use your answers to calculate your BAC at the time of driving. You should politely inform the officer that you do not answer questions without an attorney present. Remember that you are likely being recorded- be respectful and polite.
- Sobriety tests
At some point, the officer will tell you that you need to perform some tests to see if you are okay to drive. The officer will not ask you if you consent to these tests. He will jump into the tests and hope that you agree to do them. The three standard tests used by law enforcement are the (1) HGN test (Horizontal Gaze Nystagmus), which is the follow the light with your eyes test; (2) the Walk the Line test; and (3) the One Leg Stand test. Even though the officer will act like you are required to take the tests, you do not. In fact, you can and should politely refuse to take any of the officer’s tests. Remember that everything is being captured on video and audio and could be used at your trial if it goes that far.
You can and probably will be arrested if you refuse to perform the sobriety tests. If the officer felt like he had enough evidence to ask you to do the sobriety tests, he is probably going to arrest you if you refuse them. However, by refusing the tests there will be less evidence against you. The officer will handcuff you and read you a piece of paper telling you about the consequences of refusing a breath or blood test and then ask you if you agree to provide a sample of breath or blood. After this, the officer will take you to a location where the breath or blood specimen will be taken from you. Most police cars have cameras recording you in the backseat. If you vomit or act like a jerk, you can bet that it will be used by prosecutors at your trial.
- Breath or blood test
You have an absolute right to refuse breath and blood tests. However, officers in most counties will get a warrant for your blood if you refuse those tests. If an officer has a warrant, you cannot refuse to give a sample of your blood.
Opinions vary amongst defense attorneys whether you should agree to the breath test or require the officer to get a warrant for your blood. On one hand, requiring the officer to get a warrant gives your defense attorney another avenue to attack your DWI case. If the officer made mistakes in the warrant, your defense attorney can argue that your blood test result should be suppressed. However, prosecutors have a much higher success rate at trial with blood tests. The technology is better and juries tend to believe that blood tests are reliable and trustworthy. Breath tests use outdated technology and are beat by defense attorneys more regularly. I am of the opinion that you should consent to a breath test if offered. The prosecution’s expert will have a difficult or impossible time determining your BAC if you refuse to answer the officer’s questions as described above.
Hire an experienced Houston DWI defense attorney
David Overhuls is a former prosecutor that trained misdemeanor ADAs how to handle and prosecute DWI cases. David knows how these cases are investigated and prosecuted and how to attack your DWI case. If you’ve been arrested for driving while intoxicated contact David Overhuls today at 713-223-8801 for your free consultation.Contact David Today!