If you consume any alcohol and get behind the wheel in Texas, there is a chance that you will be arrested for DWI even if you are not drunk. However, a DWI arrest and a DWI conviction have very different consequences.
There are a few questions that DWI attorneys are commonly asked. "What should I do if I am pulled over after I've been drinking to avoid going to jail?" "Should I refuse a breathalyzer?" "Should I refuse the field sobriety tests?" Unfortunately, there is no definite answer to the first question. The arresting officer decides whether she believes there is enough evidence to arrest you for DWI. If you are arrested, your attorney may be able to show that there was not enough evidence to arrest you and your DWI charge could be dismissed.
Although there is no sure-fire way to avoid a DWI arrest, there are some things that you can do when you get pulled over that may help you avoid a DWI conviction. Below are some common questions and answers that you should know about DWI stops.
Should I refuse the Field Sobriety Tests?
Answer: YES. You should refuse the Field Sobriety Tests AND the Portable Breath Test.
After you have been pulled over and the officer suspects that you are Driving While Intoxicated, you may be asked to perform Standardized Field Sobriety Tests. You may also be asked to blow into a Portable Breath Test (PBT) device. The Standardized Field Sobriety Tests are recorded on camera and will be used against you in court. The Portable Breath Test is not admissible in court, because it is unreliable.
In Texas, you are not required to perform the field sobriety tests or the portable breath test (PBT). There is no penalty for refusing these tests. If you choose to perform the Field Sobriety Tests, you are giving the state more evidence to use against you. By refusing, you are reducing the amount of potentially incriminating evidence the state has, and you do not suffer any consequences for doing so.
Will I be arrested if I refuse to perform the Field Sobriety Tests and PBT?
Refusing every test during a DWI stop may not prevent an arrest, but it may keep a DWI off your record. The officer has to have probable cause to believe you are Driving While Intoxicated to arrest you. There are many things that could happen during your stop that would cause the officer to develop probable cause.
Should I refuse a Breath and/or Blood Test after I have been arrested?
After you have been arrested for DWI, you will likely be asked to provide a breath and/or blood sample. You always have the option to refuse these tests. Unlike the Field Sobriety Tests and PBT, refusing a breath and/or blood test after your arrest does have consequences such as a longer driver's license suspension. It is a good idea to refuse the blood and breath tests despite the longer license suspension. If you consent to the tests, the results will almost always be admitted into evidence and used against you. If you refuse these tests, the officer may still get a warrant for a sample of your blood. However, the warrant may be defective, meaning the blood test results will not be admissible.
Is it a Crime to Refuse the Breath and/or Blood Test?
Answer: NO, not in Texas.
Some states make it a separate crime to refuse a breathalyzer or blood test. There is no criminal charge for refusal in Texas, but you will have a longer license suspension for refusing.
Won’t I appear guilty if I refuse to take a Breath and/or Blood Test?
Answer: MAYBE, but it's better than giving the state physical evidence.
While the court may consider your refusal to be evidence of your guilt, it is better than providing physical evidence that proves you are guilty. When you are stopped for DWI, every question and every test is designed to build evidence to obtain a conviction. When you agree to take these tests, you are voluntarily giving the state evidence to use against you.
How much longer will my license be suspended if I refuse a Breath and/or Blood Test?
Answer: Your license will be suspended for 90 days if you agree to take the Blood and/or Breath Test and your BAC is over .08. Your license will be suspended for 180 days if you refuse.
If it is your first DWI, your license will be suspended for 180 days for refusing the Blood and/or Breath Test. If your license has previously been suspended for a DWI arrest within the last 10 years, your license suspension can be extended to 2 years.
If you agree to take the Breath and/or Blood Test and your BAC is over .08, your license will be suspended for 90 days. If your license has previously been suspended for a DWI arrest within the last 10 years, your license suspension can be extended to 1 year.
I have a job, kids, etc. Is there anything I can do to prevent my license suspension?
Answer: YES. Request an ALR hearing within 15 days from the date of your arrest.
When you are arrested for DWI in Texas, your driver’s license is confiscated and you are given a Temporary Driving Permit. The driving permit allows you to legally drive for 40 days after your arrest. If you take no other action, your license will be suspended on the 41st day from the date of your arrest.
You must request an ALR hearing within 15 days from the date of your arrest if you want to fight your license suspension. It may take up to 120 days after the request for the hearing to be scheduled.
If you contact a DWI attorney prior to the 15-day deadline, the attorney can explain the ALR hearing process in more detail and request the hearing for you.
Is there a way I can legally drive if my license gets suspended?
Answer: YES. You can apply for an occupational driver’s license.
If your Texas driver's license was suspended following a DWI arrest, you may be able to obtain an occupational driver’s license.
An occupational driver’s license allows you to drive to and from work and school. It also allows you to perform essential household duties such as grocery shopping, attend doctor appointments, etc. A DWI attorney can help you obtain an occupational driver’s license.
Three things to remember:
Any time you have an interaction with the police, you should be respectful and remember three things: (1) you have the right to remain silent, (2) you have the right to refuse to take any tests, and (3) you have the right to an attorney. If you have recently been arrested for DWI, it is important to contact an experienced DWI attorney to discuss your case and your options.
The Loker Law Firm represents individuals in the Dallas-Fort Worth area who have been arrested for DWI.