TEXAS DWI GUIDE
Attorney At Law
4309 Yoakum Blvd., Suite 2000
Houston, Texas 77006
Tel (713) 521-5610
Fax (713) 521-6511
Adapted from Texas Drunk Driving Law (4th ed. issue, Trichter/McKinney)
I. Introduction: But I’m not Drunk Officer!
You're driving home after happy hour with friends after sharing a plate of nachos and
drinking a couple of beers. It's Thursday evening, about 7:30 p.m. and you’re weary
from starting the day early and worry about tomorrow 's meeting. Rubbing your tired
eyes, irritated and red from allergies, and wanting to get home quickly, you drive a little
faster than you normally do.
All of a sudden, red and blue strobe lights shine in your rearview mirror. You turn
around to look out the rear window and as you do, your car drifts slightly onto the right
shoulder stripe. The police car is right on your tail! You pull over to the side of the road,
hoping the police officer will pass you by, but it pulls directly behind your car. Anxiety
grabs hold of you. The officer approaches your car and asks you to “step out” which
The police officer stands directly in front of you—about two feet from your face and
requests your driver's license and proof of insurance. You immediately produce your
license but your insurance card is in the glove box, so, nervously, you ask the office for
permission to look there.
To your surprise the officer asks if you’ve been drinking and sounds like the
“Terminator.” Alarmed, you wonder why he has asked you this, but since you don’t
believe you’re drunk, you admit that you had two beers. Minutes later, another police
officer arrives at the scene, monitoring the situation. The first police officer orders you
to perform field sobriety tests (FST’s), first demonstrating to you how to do them.
You ask why you have to perform these tests, telling him that you’re not drunk. The
police officer misinterprets this as a challenge to his authority and he becomes
unpleasant. He states, "sir, I believe you are intoxicated. I stopped you because you
were traveling 60 mph in a 55 mph zone. I noticed you were slow to stop and that you
weaved out of your lane onto the shoulder stripe. You also had difficulty getting out of
your car and finding your proof of insurance. Your eyes are bloodshot and glassy and
you have a strong odor of alcohol on your breath."
The cop, once again, demands that you perform the field sobriety tests. You ask, him
what happens if you refuse and also if you can speak with a lawyer. He responds that if
you refuse to do the exercises until after you speak to an attorney, he’ll arrest you for
suspicion of DWI and take you to the police station for a breath test and videotaping.
Stunned, you wonder, "How can this be happening to me? How can they do this? What
are my rights? What should I do?" You decide to tell the cop that you’re not doing or
saying anything until you speak to your lawyer. In response, the cop places you under
arrest for the offense of DWI and puts you in the back of his patrol car to be brought to
the police station for a breath test and to be videotaped.
Confused and beleaguered, you are led to a room at the police station or jail where you
are asked to perform field sobriety tests ( FST’s) in front of a video camera and to take
a breath or blood test. You wonder if you can refuse to perform these exercises before
the video recorder and if you can refuse the breath or blood test.
After spending the night in jail while the sheriff’s department took their time processing
your bond, you’re released to explain what happened to your family and friends. You
hope no else one finds out about the arrest, especially your employer. Then you begin
to wonder how a DWI conviction will affect your career. The shame you feel is
agonizing and you realize you haven’t even begun to think about what the punishment
DWI is a crime committed, not by criminals but
by ordinary people. Unfortunately most
individuals have driven while drunk at one time
or another during their lives. Nobody does it on
purpose. In a large, spread out city like Houston,
which has no public transportation system, the
likelihood of driving while intoxicated is great.
Obviously you should not drink and drive. That
is the best way to avoid an arrest for DWI. We
all know this.
The problem is that your decision making
abilities significantly diminish after several drinks.
So when you are drunk, you still think you are
able to drive safely. The next day you may ask
yourself, “what was I thinking?” The answer is
that you were not thinking because you were
drunk. Even when you are not “drunk” and you
are able to drive safely, you can still be legally
intoxicated and arrested under the law.
The crime of driving while intoxicated has been highly publicized and with political
pressure from groups like MADD, who has pushed for ever harsher punishment for DWI
offenders. Moreover, the District Attorney’s Office and Houston Police Department have
stepped up arrests and prosecutions. In fact, even though DWI is one crime, you are
actually prosecuted twice, first by the district attorney’s office for violation of the criminal
code and second by the Department of Public Safety to take away your driving
A DWI arrest costs thousands of dollars in fines, court costs, towing fees, attorney’s
fees, probation fees, etc., not to mention possible jail time. If convicted, it can never be
removed from your record. So, when you hire a lawyer to defend you, make sure he or
she is qualified, but most importantly, make sure it is someone you trust because your
life is literally in their hands.
Thousands of drivers are stopped by police every year for a real or phony traffic
violations, and then find themselves arrested and charged with DWI. This area of law is
very complicated, so don’t beat yourself up if you don’t understand all the concepts
presented here. I hope this guide will help you to understand Texas DWI laws, the
criminal justice process, and your rights under the United States and Texas
II. Background on DWI
1. What exactly is a DWI and what does the prosecutor have to prove to
DWI stands for “Driving While Intoxicated”. The statute makes it a crime to operate an
automobile in a public place while "intoxicated." TPC § 49.04(a) The prosecutor can
prove you are “intoxicated” in two ways: First, when a person loses the normal use of
either mental or physical faculties (abilities) as a result of alcohol, drugs, controlled
substances, or any combination of them. Second, when a person has an alcohol
concentration of .08 or more. “Normal mental and physical faculties" refer to the
abilities of the particular driver who is arrested, not to the normal abilities of the arresting
officer, jurors, or average person. TPC § 49.01(2)(A)(B)
2. What is the time my Blood Alcohol Concentration (BAC) important?
A violation of the law occurs only when a person has an alcohol concentration of .08 or
more, at the time the person is driving. It is not a per se (automatic) crime to have an
alcohol concentration of .08 either before or after driving. So, the BAC may be used to
determine if the person had a. 08 or more when actually driving.
The timing of the particular test in question presents a significant problem for both the
prosecution and the defense. This is because .08 alcohol concentration testing is rarely
performed at the time of or immediately after driving, rather, it is usually done
approximately 45 minutes to 1 ½ hours after driving. Under these circumstances, it is
scientifically impossible, absent other evidence, to figure out if the person was over or
under a .08 alcohol concentration at the actual time of driving.
For example, let’s you’ve finished your 4th drink at 7:55 p.m. You leave the bar at 12:00
a.m. for a five-minute drive home at 8:01 p.m., when you’re stopped, not for speeding,
but because the light over your license tag is burned out. The officer smells a strong
odor of alcohol on your breath and sees your allergy- reddened eyes. So he arrests you
and takes you to the police station for an alcohol concentration test.
If the test is given at 8:30 a.m. and results in a .08 BAC, you’re guilty. The problem is
that it is possible for your BAC to have been .05 at 12:01 a.m., depending on when you
had consumed alcohol earlier in the evening. In the final analysis, it may not have been
a smart to drive at all, but if you were only .05, you did not commit a DWI offense.
3. Are the Tests Used to Determine Alcohol Concentration Reliable?
Texas law provides that testing of alcohol concentration can be performed by analysis
of a DWI suspect's urine, blood, or breath. All three of these testing methods have
proven to be unreliable.
Urine testing is the least accurate means of alcohol concentration testing. Blood testing
is thought to be the most accurate and reliable way of determining alcohol
concentration. However, the prosecution doesn’t like it since the preservation of the
specimen provides the defense a great opportunity to scrutinize and attack the validity
of the test.
From the point of view of law enforcement, breath testing is the easiest and best way to
determine alcohol concentration. However, accuracy and reliability of breath testing is a
source of intense debate. Moreover, breath samples are not preserved for subsequent
evaluation by the defense, which means that if your breath test shows you are
intoxicated, it is very difficult, if not impossible, to disprove the results.
4. How Is Breath Testing Done in Texas?
Breath testing in Texas is done by a machine called an Intoxilyzer. There are two
models now in use, a Model 4011ASA and a Model 5000, with the latter rapidly
replacing the former. It may surprise you to know that Breathalyzers are not used.
The Intoxilyzer machine works on the basis of infrared light absorption by alcohol
detected in a person's breath. According to its manufacturer and the Texas Department
of Public Safety (DPS), which certifies the machine and writes the rules for its use, the
machine determines alcohol concentration by subtracting the amount of light absorbed
from the person's breath sample and then
compares that amount to the amount of light
originally introduced into the breath sample. The
difference between the two is the test result.
5. Is the Intoxilyzer ever Wrong?
Proponents of the Intoxilyzer argue that the
machine only absorbs alcohol and nothing else.
However, opponents insist that the Intoxilyzer
often includes other commonly found substances
in human breath leading to false readings.
There are several concerns with the Intoxilyzer:
First, the DWI law states that a person is intoxicated when he has a .08 BAC, but
it does not proclaim the method to be used. Therefore, neither judges nor juries
are required to blindly accept the accuracy or reliability of an Intoxilyzer.
Second, neither the manufacturer nor the DPS allow anyone outside law
enforcement to test the machine's accuracy or reliability.
Third, the manufacturer does not warrant the Intoxilyzer to be fit for any particular
purpose, implying that its machine is not always reliable.
Fourth, the Intoxilyzer is capable of breath preservation but DPS fails to require
the breath specimens be saved. Preservation is very cheap and would allow for
the person charged with DWI to prove or disprove the test results.
Finally, the Intoxilyzer's design is based on a flawed premise because it assumes
that every person tested is exactly the same. Human beings come in all different
shapes and sizes.
6. What is the difference between a DWI and Public Intoxication?
The statutory definitions of the term "intoxicated" are different. DWI “intoxication” (loss
of normal mental or physical faculties and/or .08 or more) requires a lesser degree of
intoxication than public intoxication (PI) which requires a person be either a danger to
himself or others.
In addition, police officers must videotape DWI suspects (only in counties with
populations of 25,000 or more), and, persons holding driver's licenses have implicitly
consented to take either a breath or blood test after an arrest for DWI. No such laws
exist for PI. Finally, PI is only a Class C misdemeanor.
7. What are the Punishments for a DWI conviction?
A DWI starts as a Class B misdemeanor and goes all the way up to a second degree
felony. Chapter 49 of the Texas Penal Code gives identical penalties for driving, flying,
and boating while intoxicated. Generally, the classification and penalties for DWI are:
(a) first offense: Class B misdemeanor with a fine up to $2,000 and/or
confinement in jail from 3 to 180 days, plus a suspension of driver's license privileges
from 90 to 365 days.
(b) second offense: Class A misdemeanor with a fine up to $4,000 and/or
confinement in jail from 30 days to 1 year, plus a suspension of driver's license
privileges from 180 days to 2 years. Even if the sentence is probated, you are still
required to serve at least 72 hours of continuous confinement in jail.
(c) third offense (or more): 3rd degree felony with a fine up to $10,000 and/or
imprisonment for 2 to 10 years, plus suspension of driver's license privileges from 180
days to 2 years. Even if the sentence is probated, you’re still required to serve not less
than 10 days of continuous confinement in jail.
(d) if there is an open alcohol container (first offense): the minimum term of
confinement is increased to 6 days.
(e) if there is an accident and serious bodily injury occurred: the offense is known
as intoxication assault and classified as a 3rd degree felony. The punishment includes a
fine up to $10,000, and imprisonment from 2 years to 10 years. If the sentence is
probated, punishment still requires not less than 30 days of confinement in jail.
(f) if a death has occurred: The offense is known as intoxication manslaughter
and classified as a 2nd degree felony. The punishment includes a fine up to $10,000
and/or imprisonment of not more than 20 years or less than 2 years. If the sentence is
probated, you are still required to serve not less than 120 days in jail. Also, a
suspension of driver's license privileges from 90 to 365 days.
A previous conviction from another state can be used to enhance the punishment.
Unless you have a previous felony conviction, you are eligible for probation.
8. What Conditions are placed on you for a DWI bond?
For a first offense, bond conditions are a matter of discretion for the court. However, if it
is your 2nd or 3rd DWI or a first offense of Intoxication Assault or Manslaughter, you are
required to install an ignition interlock device on your car and not allowed to operate it
without one. If the device detects a certain level of alcohol, the vehicle is temporarily
If you’re lucky, a judge may decide that justice would not be served by installing an
interlock device on your vehicle. Conversely, some judges require that all DWI
defendants, even first offenders, install interlock devices on their cars. No judge wants
to be the guy or gal who allows a DWI suspect to drive without an interlock device, and
then that person drinks and drives and kills someone while out on bond.
9. Can I refuse to take a Breath or Blood Test?
Yes. But such a refusal can result in the following penalties:
1. suspension of your driving privileges for 90 days if this is your first arrest for
2. a 180-day suspension for a subsequent arrest if, in the first arrest, you refused
to submit to testing or had an alcohol concentration of .08 or greater;
3. a one-year license suspension if you have a prior conviction for DWI; and
4. the admission into evidence of your refusal to take the breath test in the DWI
criminal trial to imply to the judge or jury that your refusal was based on the belief that
you thought you would fail the test.
If you do submit to alcohol concentration testing and fail, your driver's license privileges
can be suspended and the test result may come into evidence in the criminal trial. The
possible suspension periods are as follows:
1. 60 days if your driving record shows no prior alcohol-related arrests;
2. 120 days for two or more prior arrests without a conviction; and
3. 180 days if you have a prior conviction.
In deciding about whether or not to consent to a blood or breath test, you have to
balance the fact that if you consent and fail, you are providing strong evidence of your
guilt to law enforcement versus the fact that if you refuse, you are facing a longer period
for your driver’s license suspension.
10. What happens if I’m Convicted and Receive Probation?
For a first offense you may, as a condition of probation, be jailed for a portion of the
sentence, be required to perform community service, be forced to undergo an
evaluation for alcohol abuse, be required to attend a victim impact session, be required
to install an alcohol ignition interlock device on your car, pay fines, administrative fees,
and/or be required to attend rehabilitative programs designed for DWI offenders.
If you have one prior conviction you must serve a minimum of three days in jail. Two or
more prior convictions and the minimum mandatory jail sentence increases to 10 days.
A prior conviction for Intoxication Assault requires you spend at least 30 days in jail,
whereas the minimum jail time for a prior conviction for Intoxication Manslaughter is 120
days. In addition to these jail sentences, you may be required to install an alcohol
ignition interlock device on your car, as well as any of the other conditions discussed
11. Can I Refuse to be Videotaped?
No! However, there are quasi exceptions. For example, although a person has no right
to refuse being videotaped, you do have the right to refuse to perform any police field
sobriety tests and to refuse to answer any questions to which the answers might be
incriminating. Unlike breath or blood test refusals, there are no penalties for refusing to
do the FST’s
12. Can a police officer force me to take a Breath or Blood Test?
Police can never force you to take a breath test, but sometimes force you to take a
blood test. An officer has authority to force a blood test only when there has been an
accident and a death has resulted or is likely to occur, or there has been a serious
bodily injury. An officer may also be able to force you to provide a blood sample if he is
able to obtain a search warrant from a judge based on probable cause to believe you
are intoxicated. Even if an officer is authorized to forcibly draw blood from you, do not
give him oral permission to do so, but do allow him to take it.
13. Is it legal to ever drink Alcohol while driving?
No! It is a Class C misdemeanor for a driver to operate a car and personally consume
an alcoholic beverage. This penalty, as noted earlier, increases if the driver is arrested
for DWI. However, there is no prohibition against any passenger consuming an
14. Do I have the Right to call a Lawyer?
Maybe! There is no law which provides that the police must allow you access to a
telephone to call a lawyer. However, from a constitutional perspective, a person
arrested for DWI probably does have a due process right to contact an attorney for the
purpose of arranging bail, preserving evidence, and deciding whether or not to answer
interrogation questions asked by police.
15. When do you have an absolute Right to an Attorney?
Under our federal and state constitutions, persons you have an absolute right to an
attorney at your criminal trial. However, such is not the case in every stage preceding
the trial. In some pretrial stages, a
person in custody has a right to an
attorney for one reason but not
another; for example, assistance
may be allowed in giving answers
to questions asked by police but
not for deciding whether or not to
take a breath or blood test.
Generally, any person in the
custody of a police officer and who
would objectively be considered
under arrest, is entitled to a lawyer
prior to and during interrogation.
However, a violation of these
rights does not mean the case against you will be dismissed. Rather, the use of the
person's incriminating statements will be precluded from being used as evidence
against him or her at trial. This is called the exclusionary rule.
16. Why do I need a lawyer and how can one help Me after I've been Arrested
Here are just some of the ways a lawyer can help you:
help you to be released from jail by arranging for and posting bond;
prevent and/or deter the police from violating your rights.
arrange for and coordinate a blood test . Anyone arrested for DWI has a
constitutional right to a second independent blood test, by their doctor if
performed within two hours of arrest.
advise you as to whether or not it would be in your best interest to answer
questions, perform sobriety tests, or proclaim your innocence while being
video/audio recorded by the police.
17. What, if anything, can be done to prevent my License from being
suspended if I refuse or fail a Breath or Blood Test?
You have the right to request an Administrative License Revocation hearing (ALR). If
you either refused or failed blood or breath testing after your arrest, an officer is
required to give you written notice that your driver's license will be suspended unless
you request, in writing, a hearing from the Department of Public Safety (DPS)
headquarters in Austin within 15 days. If you fail to request a hearing, your license is
automatically suspended on the 40th day after receiving notice.
If the officer fails to provide you with notice of your license suspension, the DPS will mail
a notice to you, via certified mail. So now, instead of the 15 days to file for a hearing
from the date of your arrest, you have 15 days from the date you receive the DPS
notice. Notice is presumed to have been received five days after it is mailed, triggering
the 15-day time limit to request a hearing.
Therefore, DO NOT rely on receiving notice from the department to request a hearing or
you might end up waiving your right. It may also be a good time to confirm with DPS
that the address on your driver's license is correct, because that is where the DPS will
send notice to you. Your driver's license address is your mailing address for notice
purposes because you’re supposed to report address changes to the DPS within 30
days of moving.
A request for an ALR hearing stops the suspension of your driver's license until the
hearing. Furthermore, if you lose your hearing, you have the right to appeal which
becomes final within 30 days after judgment. Otherwise, you waive the right to appeal
and your driver's license will be suspended on the 40th day after the judgment becomes
final. Again, while you are waiting for the appeal to be heard, your driver's license
suspension is stopped, but only for a period of 90 days. Your license will be suspended
on the 91st day even if your appeal has not been ruled upon. Here, however, if you win
your appeal, your suspension is lifted.
Whether your license can be saved depends on whether you have been convicted of an
alcohol-related offense within the past 10 years, or whether your driver's license has
been suspended from a drug- or alcohol-related offense in the past five years. If you fit
into one of these categories, your driver's license is suspended on the 40th day after the
final judgment during the pendency of your appeal. Again, however, the suspension is
vacated if you win your appeal. Lastly, if you ultimately lose your license, you can have
it reinstated if you win your DWI case by being found "not guilty."
18. Why is it so Important to Request an ALR Hearing?
There are a number of good reasons to request an ALR hearing. First and foremost, the
best reason to request such a hearing is to save your driving privileges. Second, you
force the State of Texas to prove that the police officer who stopped and arrested you
did so with either reasonable suspicion or probable cause. Also, if the DPS prosecutor
fails to prove that probable cause or reasonable suspicion existed to stop or detain you
in the ALR hearing, it could result in a dismissal of the criminal charges against you.
In the ALR hearing there are two possible theories of prosecution that the state will
argue. The first is that you refused to take an alcohol breath-test and the second is that
you took the test and failed it. If you refused to submit to chemical testing, our law
requires the State of Texas to prove the following at an ALR hearing:
1. reasonable suspicion or probable cause existed to stop or arrest you;
2. probable cause existed to believe you operated a motor vehicle in a public
place while intoxicated;
3. you were placed under arrest and requested to submit to chemical testing; and
4. you refused the test upon request of the officer.
The issues are slightly different if you submit to and fail chemical testing. If you fail, the
DPS must prove the following two issues:
1. that you had an alcohol concentration of .08 or more while operating a motor
vehicle in a public place and at the time of testing; and
2. that there was probable cause to arrest or reasonable suspicion to stop you.
Proof is generally submitted in the form of the arresting officer's written affidavit, but
sometimes subpoenas are issued and the officer actually testifies. In either event, a
skilled and knowledgeable attorney is necessary to ensure that your rights are
19. What are the Penalties for driving while my license is suspended?
This type of offense, known as Driving While License Suspended (DWLS), is a
misdemeanor and carries with it the possibility of from three days to six months'
incarceration and $ 100-500 fine for each violation, unless it is enhanced to a Class A
Misdemeanor. In that case, the penalties will increase.
20. What is an Occupational Driver’s License (ODL) and how do I get one?
Fortunately, if your driver's license is suspended you may apply for an occupational
driver's license. To receive an occupational driver's license, the law requires that good
cause be shown. Examples of "good cause" under our law would be going to and from
work, taking children to and from school, going to and from a religious service, traveling
to or from a grocery store, or traveling to or from a medical facility for treatment. This
license allows you to drive during a 12-hour period per day. This privilege is, however,
subject to restrictions.
Note, however, that you cannot be issued an occupational license if you have had one
in the last 10 years. Also, you might be required to install an alcohol interlock device on
your car and fulfill some of the same requirements necessary for probation.
21. Can I get a DWI conviction expunged (wiped) from my record?
No! If a person receives a final conviction for DWI it will always remain on his record.
Only when the case is dismissed or you are found not guilty, does our expunction law
provides some limited circumstances which would allow for all records of the incident to
be erased. In reference to insurance rates, if you receive a DWI conviction, the great
likelihood is that your insurance rate will at least quadruple.
22. What is the DIVERT program offered by the Harris County District
DIVERT stands for Direct Intervention Using Voluntary Education Restitution &
Treatment. The program postpones prosecution of 1st offender Class B Misdemeanor
DWI cases. In order to be eligible for the program you must: be a US citizen or legal
resident and never been arrested/charged/convicted of any crime. Then you submit to
a DIVERT interview and testing to evaluate alcohol/drug dependency in order to
determine whether you are a good candidate for the DIVERT program..
After the interview, if it is found that you are a good candidate for the program, an
agreement will be offered to you with a long list of probation conditions including, but not
limited to monthly probation reporting, drug testing, counseling, ignition interlock,
community service, etc. If you accept the terms of the agreement, you will be required to
enter a plea of guilty and agree to the punishment if you violate any conditions of the
program. Additionally, part of the agreement will require you to give up your legal rights.
The case will then be reset for a period of 12-24 months and if you successfully
complete all the conditions and treatment plan, your case will be dismissed. After 2
years from the date of dismissal, you can request an expunction of your record.
III. What do I do If I am Stopped for a DWI?
1. Be Polite and Courteous.
Remember, police work is very dangerous and extremely demanding. They are under
immense pressure and must approach every situation with extreme vigilance, not
knowing how you will react, if you are carrying a weapon or what other risks you may
present. A disrespectful attitude and rude behavior will almost certainly guarantee
being handcuffed, placed in the back seat of a patrol car, and taken downtown.
2. What should I Do when a police car signals Me to Stop?
Signal your right blinker to indicate to the police officer that you are pulling over. Drive
to the right lane as cautiously and quickly as possible until you can either safely park on
the shoulder of the road or in a parking lot. Park, shut off your engine and radio, and
turn on your emergency flashers. These actions will help show the officer that you are
3. What Should I Do before Leaving My Car?
Take your driver's license out of your wallet to give to the officer. It will usually be the
first thing he will ask to see. If you hand your wallet to the officer, he will not take it for
fear of being accused of taking money or something else of value. This action will
demonstrate your cooperation and reduce the officer's apprehension as your hands will
always be visible to him. It will also show that you have not lost the normal use of your
4. Should I leave my Car?
Yes. Walk to the right rear and wait for
the officer. Keep your hands visible
and do not make any sudden moves.
Do not lean on your vehicle or stand
between it and the police car.
Remember that the officer does not
know who you are. At this point in
time, he will be scanning you for a
weapon or for any other threats to his
5. Should I Admit to Drinking an
Since you will likely have an odor of
an alcohol on your breath, don’t deny
that you had one or two drink because
then the officer will assume you are
hiding the fact that you had many
drinks. However, if you admit to more
than two drinks, it will likely result in
your arrest. This is especially true
when the officer fails to ask "when"
you had the drinks. For example,
admitting to drinking 4 beers sounds
much different than admitting to
drinking 4 beers over a period of eight hours. In this situation, it is not whether you tell
the truth or lie that matters, but whether or not you tell the truth or don't answer at all. In
this regard, the truth has resulted in the arrest of many non-intoxicated drivers and
cost them a small fortune for bond, towing, and attorney’s fees .
6. What are my Constitutional rights regarding talking to the Police?
Keep in mind that both our federal and state constitutions guarantee the right to not
incriminate yourself. So, politely ask the officer why he stopped you and if you are
presently under arrest because a person can be under arrest and yet not be told so.
If the officer tells you that you are under arrest then you should immediately tell him you
want an attorney with you for any further questions. Do not refuse or agree to perform
field sobriety tests, but rather, tell the officer you first want advice from a lawyer to help
you decide whether or not to do them.
On the other hand, should the officer say you are not under arrest, then you need to use
a different approach. Politely ask him if you will be written a traffic ticket and if so, are
you free to leave after it has been written. If the officer says "yes" to both questions,
count your blessings, remain nonthreatening, be courteous and only speak when
spoken to. Never volunteer information as that will only serve to prolong your roadside
stay. If the police officer asks about alcohol consumption again, tell him of that you will
not answer any questions, except those related to the specific traffic offense—and don’t
What about a common situation when the officer says you're not under arrest, but
doesn’t let you leave? Just tell him you wish to stop answering any more questions and
want a lawyer. Be polite, but quit talking! The “ball” is in the police officer’s “court” and
now he has to choose whether to let you go or continue his investigation. If he lets you
go, thank God and go on your merry way. If the cop decides to detain you longer, he
now must be careful that he doesn’t violate your right not to be unreasonably
7. A Short Explanation of your Constitutional Right against Unreasonable
The use of your constitutional rights cannot be used against you. For example, a police
officer has the right to approach you in a public place and talk to you, even without any
belief you have committed a crime. However, it is your right to simply walk away and
that cannot be used as evidence of guilt. By detaining you, a police officer violates your
right against unreasonably seizure, unless the officer has a specific and articulate
reasonable suspicion that you are involved in criminal activity. This justification cannot
be a hunch or a gut feeling.
A detention must be narrowly limited in both its time and scope to allow the officer to
dismiss or confirm his reasonable suspicions. If the officer takes too long or proceeds
beyond the purpose of his initial detention, he violates the person's constitutional right
against unreasonable seizure. Moreover, in order to make an actual arrest, a police
officer needs more than “reasonable suspicion,” he must have "probable cause" to
believe a crime has occurred. "Probable cause" is a degree of evidence that would lead
a reasonable person, to believe that a crime has occurred.
Whenever a person is arrested on less than "a reasonable and coherent suspicion" or
on less than "probable cause," that person's constitutional right not to be unreasonably
seized has been violated and the remedy is to exclude from the prosecution's case any
and all evidence that resulted from the violation. Accordingly, when you find yourself
being detained for a DWI investigation but not yet arrested, be polite, use your rights to
remain silent and have an attorney present, so you don’t accidentally incriminate or
8. If I'm Arrested and Taken to the Police Station, Do I Perform the Sobriety
Exercises Before a Video Camera Recorder, Submit to the Intoxilyzer Test,
and Answer Questions Concerning Drinking?
Maybe, never and maybe! First, immediately inform any and all officers, that you want to
remain silent until you can contact an attorney and have a private consultation with him
regarding everything the officer asks you about, except for bail. Be careful to tell the
officers that you are neither refusing nor agreeing to cooperate with them. Rather, tell
them that your decision to refuse or agree will be based upon the advice from your
Sometimes cops will say "you can't have a lawyer yet." This often occurs when they
request an alcohol concentration test and the video exercise test. This statement may
or may not be true, but you will have no way of verifying its truth until you speak to your
lawyer. Therefore, the best thing to do is remain polite but firm, in your requests to
speak to an attorney. Simply put, do not take "no" for an answer.
When the police allow you to use the telephone, immediately use it. Make a call to any
attorney you know and if you don't know any, ask for a telephone book to find one or
ask to call directory assistance for a number. A good place to start in the phone book
might be under the listing for your local criminal law bar association, (e.g., the Harris
County Criminal Lawyers Association) Make the call even if you don't know or have a
lawyer or your arrest time is not during regular business hours.
Most law offices answer their phone even after closing through use of an answering
service. Many of these services can actually connect you directly to an attorney's cell
phone. Be sure to ask the officer for a chance to speak with your lawyer in private. If the
police refuse to allow you privacy, this violates your right to an attorney.
Always do exactly what your lawyer tells you to do—nothing more and nothing less. If
he tells you to perform exercises before a video camera and/or to answer police
questions concerning alcohol consumption, then do it. In regard to the Intoxilyzer
breath test, if your lawyer tells you to simply take it, I would recommend changing
lawyers. In my opinion, it is wrong to advise a person to take a test on a machine which
is not able to be independently verified and which the police fail to preserve the breath
specimen used to prove your guilt.
The "presumption of innocence", granted to every citizen accused of a crime is the
cornerstone of our criminal justice system because the state has the power and
resources to overwhelm most defendants. Because the United States has always stood
for fairness and justice, we should always cherish the "presumption of innocence"
particularly in the DWI case, because one day you may find yourself the next citizen
accused of a DWI.