Know Your Rights When Pulled Over for a DWI in Travis County
Though it's safest to avoid drinking and driving altogether, drinking alcohol and driving a vehicle is not illegal under the laws of Texas. Instead, it’s illegal to drive while intoxicated, which means having lost the normal use of your physical or mental faculties, or having a blood-alcohol concentration (BAC) of .08 or more.
If you drive a car, it is essential that you know your rights when pulled over for a DWI in Travis County. There’s not a single right answer to the question of how you can “get off” of a DWI. However, how you conduct yourself during a police officer’s investigation will greatly influence the ultimate outcome of your case. Even if you ended up getting arrested, behaving well at this critical moment may allow you to avoid a conviction later on.
All that said, there are some general tips that may come in handy, depending on your state—sober, buzzed, or definitely intoxicated. Let’s consider each case.
THE SOBER DRIVER
If you haven’t had a drop of alcohol all night, you should cooperate fully with the police officer who stops you. Be honest and calm when the officer asks you questions. If the officer asks you to step out of the car and begins to instruct you to perform sobriety tests, you can proceed.
At the end of this examination, the officer will give you the opportunity to take a breath or blood test. Go ahead and take the breath test. It should be .000 if you haven’t been drinking. If, for some reason, the breathalyzer shows the presence of alcohol, ask for a blood test, as they’re more accurate.
Typically, Austin officers know when someone is completely sober, so a DWI investigation likely won’t even begin in this situation. Instead, you’ll probably be cited for whatever traffic violation led to you being pulled over, and then you’ll be on your way.
THE DRIVER UNDER THE INFLUENCE
Unless you’re under 21 years old, it’s not illegal to drive while under the influence of alcohol, as long as your BAC hasn’t gotten up to .08. But if you’ve had a few drinks, it’s very hard to know whether you’ve reached that point. The following chart can be a useful guide. I’ve also written more extensively here about the legal alcohol limit.
Refuse to take a breath or blood test.
However, people often have difficulty determining their exact BAC, as it's hard to keep an accurate count of the number of drinks consumed and total time spent drinking. For this reason, it’s very important that you refuse to take a breath or blood test. If either of these tests shows that your BAC is .08 or higher, the likelihood of the prosecutors eventually dismissing your DWI charge becomes much lower.. Instead, if you want to fight the case, you’re going to have to go to a jury trial, where a jury will hear scientific evidence about the validity of the machine that recorded your BAC level. While an experienced DWI attorney in Austin like Chris Perri can cast doubt on a test that’s over .08, it’s a difficult hill to climb; plus, you’ll end up spending a lot of time and money that you might have saved if you had just refused to blow.
Refuse to complete the field sobriety tests as well.
Regarding field sobriety tests, most people don’t realize that these are entirely optional. A police officer cannot force you to do these tests. Of course, the officer will say that you gave your consent to do the tests when you signed up for your driver’s license, but that doesn’t really mean anything.
The smartest choice is to refuse the field sobriety test if you have any doubt about your sobriety. Yes, that may result in an arrest, but you have to think of the final goal -- avoiding a DWI conviction. Field sobriety tests are challenging even when sober. If you complete the tests, you are voluntarily providing self-incriminating evidence to the prosecution. It’s your right not to self-incriminate.
There are three commonly used measures in the field sobriety tests, all of which are recorded on videotape:
(1) The horizontal gaze nystagmus
(2) The walk-and-turn
(3) The one-leg stand
The horizontal gaze nystagmus
The first field sobriety test is highly subjective, as it’s the one where an officer asks you to follow a stimulus (a penlight or finger), and the officer records whether your eye makes an involuntary jerking called a “nystagmus.” Everyone has a nystagmus, but a drunk person apparently has a more distinctive nystagmus than a sober person. Almost every officer will record that you exhibited a distinct nystagmus, which indicates intoxication. Since most of the video cameras don’t zoom in on your eyes, there’s no way to contest whether you really exhibited this distinct nystagmus.
The walk-and-turn
The second field sobriety test is the walk and turn, which is really a divided attention test. The officer gives you a confusing series of tasks to perform, and it’s very easy to exhibit “clues” of intoxication. For example, you may feel like you’re ready to perform the test, but if you start before the officer tells you to begin, then that’s a “clue.”
The one-leg stand
The final field sobriety test asks you to stand on one leg, with your hands at your side, for 30 seconds while counting aloud. It’s difficult for many sober people to do this without wobbling around before they regain their balance, especially for those with any physical disabilities or injuries. If you raise your arms for balance, that’s another “clue” of intoxication.
Avoiding a DWI conviction is the #1 goal – even if it means getting arrested now.
The problem with refusing these tests is that you’ll be arrested, as officers don’t like it when people don’t cooperate. The videotape of the field sobriety tests is usually the only evidence of a defendant’s intoxication, so the officers try to make it as difficult as possible to refuse. They’ll even tell you that you have a chance to go home instead of jail if you just cooperate. That’s a lie. Once an officer asks you to perform field sobriety tests, they’ve already determined that you’re getting arrested for DWI in Travis County. You’re better off cutting your losses and spending a night in jail without giving the prosecution further evidence. Now is the time to strategize how to avoid a conviction down the road.
Of course, you’ll be asked why you’re refusing the tests. DO NOT say: “Because I’m drunk.” Really, that’s happened before, and the prosecutor will take the case to a jury to get a conviction, pointing to this statement as evidence of your guilt. Instead, say: “On the advice of my attorney, I’m refusing all tests.”
And that’s true: DWI lawyer Chris Perri’s legal advice is to exercise your constitutional right to decline to provide evidence that could be used in a prosecution against you.
THE DRUNK DRIVER
If you’ve had more than a beer per hour during your drinking span, you’re probably intoxicated. That means you’re likely slurring your words when you talk, and you smell like alcohol. In this case, you want to minimize any evidence that the investigating officer can acquire. When you’re asked questions, respond with a simple “yes” or “no.” If the questions require more of a response, limit your answers as much as possible. The conversation is being audio-recorded, and you want to minimize evidence of your slurred speech.
Of course, you’ll be asked why you’re refusing all tests. Just say: “My attorney said so,” and shut up.
Also, remember that you’re being recorded while you’re on the way to jail. Find a spot on the floorboard and stare at it. Don’t fall asleep. Try not to vomit. Don’t talk to the arresting officer anymore. You might think you sound smart when you’re drunk, but believe us, you’ll regret what you say when you look back at the video.
What about my driver’s license?
Once you’re arrested for a DWI, the Department of Public Safety (DPS) will suspend your license. If you failed a breath or blood test, then the suspension is for 90 days. If you refused the test, your suspension is 180 days. However, when facing DWI charges in Travis County, a defense attorney can get you back on the road legally, even while the case is pending. It’s easy to get an occupational driver’s license, which can allow you to continue driving to work or school (as well as other essential functions). This suspension is completely separate from your criminal case. Saving 90 days of a suspension by consenting to the breath/blood test is a bad idea because failing one of these tests makes a criminal conviction much more likely. Remember, a criminal conviction for DWI in Austin stays on your permanent criminal record, so you want to do whatever is necessary to avoid this result. A capable lawyer can help you through this process.
I’ve been arrested for a DWI in Austin. What should I do now?
As soon as possible, you need to hire a qualified criminal defense attorney with extensive experience in DWI law. Serving Travis County, Hays County, Williamson County, and throughout Texas, Chris Perri has helped countless clients get their DWI cases reduced and dismissed. And, when the prosecution isn’t reasonable, he’s not afraid of a jury trial. If you want a DWI attorney with a track record of winning, call Chris Perri at (512) 269-0260 or visit www.chrisperrilaw.com for a FREE consultation today.