Most people are stopped for diving while intoxicated (DWI) in the evening or early morning hours. If you are driving during that time and you get pulled over by the police, there is a good chance that you will be asked to perform tests and for a breath sample. What should you do when confronted with this dilemma? Do you have to perform the tests or blow into the mouthpiece?
In Texas, you do not. You should not perform any tests the officer asks you to.
Why not? The tests are called Standardized Field Sobriety Tests by the law-enforcement community. They are anything but scientific. In fact, depending on which tests you are given, the percentage error rate can vary from 33 percent to almost 50 percent. This means that one in three people arrested will be found innocent of DWI; up to half of all people arrested will be not guilty.
When you are stopped—your rights
When stopped, remember that the officer can only detain you for as long as it takes to complete the purpose of the stop. You do not have to answer any questions. In fact, answering the questions may cause you to inadvertently cause the officer to suspect you are intoxicated. Once the officer has probable cause to believe you have been driving under the influence of alcohol, he or she has enough to arrest you with.
So why have you do the tests? Because the officer is more than likely videotaping you and trying to get you to mess up, or fall, or stumble, or slur your words during the questioning so that he or she can force you to give evidence against yourself.
The breath test
The officer may shove a portable breath-testing device in your mouth. This is not an officially sanctioned device and is inadmissible as evidence of intoxication in the State of Texas. You do not have to blow into this device, and your license cannot be suspended for your refusal to, because this is not an officially sanctioned device.
What to do when you are stopped
1. Have your driver's license, insurance, and registration readily available. Have them in your hand, ready to give to the officer. Frequently, officers note a person "fumbling" for their license or other documents as proof of their mental faculties being affected. Since a police officer is only trained to assume this is due to alcohol, one inadvertent slip could mean that you will be arrested for DWI.
2. You have the right to remain silent—use it! Many clients think they can talk themselves out of a DWI and end up making it much worse by talking. Remain silent. Give the officer your identification and insurance information and do not answer any questions or engage in small talk.
Also do not engage in any further conversations with this officer or any other officer or law enforcement authority for the remainder of the time you are stopped, or the rest of the evening for that matter. And do not answer any questions.
3. Do not take any roadside tests or exercises. Do not blow in any type of breath-testing device, either on the road or at the police station. It is not illegal for you to refuse a breath test.
4. Ask permission to leave. If you are arrested, it does not mean that the case can be proven in a court of law. Not providing evidence to use against you later is the smartest thing you can do for yourself even if it means temporarily being made uncomfortable and suffering through an arrest.
You will not be able to talk yourself out of it. The officer is not looking for you to "prove" your innocence. The officer is looking to gather evidence against you. That is the sole purpose of videotaping your performance on the tests and a breath-test request.
5. Assume at all times that you are being recorded on a videotape and everything you say will absolutely be used against you later. Even when the officer is out of the car, he or she has a microphone and a videotaping device, recording everything.
6. Be polite, don't speak, and leave as soon as you are released. If you are arrested, remain silent and contact an attorney at your first opportunity, even if that means calling from the jail—but remember, even calls from jail are recorded and can be used against you later.
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