HOUSTON, October 23, 2016 – A DWI conviction can be life altering and result in terrible short term and long-term consequences. Therefore, it is critical that anyone who drinks alcohol, even socially and on the rare occasion, understands the rights afforded to them.
These five recommendations should be followed when an individual has had even two or three drinks on the date in question. These recommendations will not help an individual avoid arrest for DWI, but they will help one avoid being convicted of DWI. An arrest will be a serious inconvenience, but a conviction will have much more severe, long-term effects on many aspects of one’s life. Therefore, the main goal when one is stopped for DWI and has been drinking should be to do everything possible to avoid a conviction.
The standard in most states for what constitutes intoxication, a BAC (blood alcohol content) of at least .08, is relatively very low and can be exceeded very easily, even if one believes they are below the legal limit. The following factors weigh heavily on one’s BAC level: the weight of the individual, the amount of drinks ingested, the time the drinks were ingested, and the amount of time that elapsed between one’s last drink and the time the test is taken.
If one gauges the situation incorrectly, and provides a blood or a breath sample and the sample comes back with a BAC above the legal limit, one’s chance at anything other than a conviction (or a very unfavorable plea deal) is severely reduced. The following recommendations will provide the best opportunity to avoid a conviction.
- The officer is not your friend – he is the star witness at your trial
From the very first second the officer turns on his lights, he is collecting evidence that will be used against the driver during trial. Additionally, it is helpful to consider him in the only role that he will be playing that matters at this point: star witness at trial. He is trained to elicit as much information as possible and to obtain the very most and best possible evidence indicating that he had probable cause to make the arrest. Do not assume that the officer is doing anything at all other than developing the strongest possible case against you.
- Assume all of your actions and words are being recorded and will be used against you at trial
A good rule of thumb is that most everything one says to an officer prior to getting arrested will be admissible at your trial, but another aspect overlooked by many people is that even though the entire video and audio may not be admissible at trial, it will all be viewed and considered by the prosecution when they are determining what charges to make and how hard to prosecute certain cases.
Considering these facts one should be very polite to all of the officers, speak only when necessary, continually request an attorney, stay seated as much as possible, and, while at the scene and at the station, assume that all of one’s actions and words are ALWAYS being recorded. Once one leaves the station and either goes to jail or gets released, then one no longer has to worry.
- Do not consent to a blood or a breath test – under any circumstance. Make the officers obtain a warrant
If one does consent and a BAC over the legal limit registers, the chances of a conviction go up exponentially. The officers will likely attempt to coerce one into taking the test – both at the scene and back at the station. Make sure to stay strong and to continue to refuse to consent. Again, the officer is the state’s star witness at one’s DWI trial.
Under some circumstances, the police can force an individual to provide a blood sample but one should politely and continually make clear that one does not consent. If the officer says that they will obtain a blood or breath sample regardless of one’s consent, it is still strongly recommended that one requires them to obtain a warrant. The time that expires while the police obtain a warrant will help reduce your BAC and, if one consents to the test, one waives many possible defenses at trial that could possibly result in the dismissal of the case. The police and prosecution must follow very strict guidelines when taking a mandatory blood sample. This is not true if one consents.
- Politely refuse all of the field sobriety tests both at the scene and back at the station – including the eye test
The officer will likely try to convince every individual that one has no choice but to perform the tests – this is not true. A huge percentage of people fail the field sobriety tests and not always because they are intoxicated at the time. There are many reasons one might not perform well on these tests, including being tired, or anxious and/or being on medication of one kind or another. One should consider these tests as in their alternative role: the state’s most critical piece of evidence at trial and one should deprive the state of this evidence to the greatest extent possible.
- Do not discuss details of what you have been doing before the encounter with the officers – and demand to speak to your attorney
The only thing one is legally required to tell the officer is one’s name and other basic identifying facts (date of birth, etc). After the officer determines who you are, he or she will inevitably ask what one had been doing that night and how much one had to drink. The officer will likely make it seem like it is in one’s best interest to share this information with him. This is not true. It is very important that the officer not be able to obtain video or audio of that could be construed to portray one as being intoxicated. Therefore, if there is a concern about slurring or anything like that – speak as little as possible. Also, one should stay vigilant when one arrives at the police station. Other officers there will likely also try to pry in order to get more information. One should refuse to answer any questions until one’s lawyer is present.
If one follows the five recommendations above, the likelihood of a conviction is much lower than it would be if one did not follow these guidelines.
James Richard Edwards is a fifth year attorney who has just opened his own law firm in Houston, Texas after spending years working under some of the most highly regarded attorneys in both Houston and San Antonio. In 2015 Mr. Edwards was given the honor of being considered one of the “Best Lawyers in San Antonio” by S.A. Scene Magazine. In 2016, Mr. Edwards moved back to Houston, Texas to begin pursuing his life dream of opening his own litigation firm in his home town that caters to individual clients in Houston, San Antonio, Corpus Christi, and the Rio Grande Valley. Mr. Edwards’ practice focuses on criminal defense, personal injury law, and family law but his firm provides services for essentially any other kind of legal need you may have. Mr. Edwards provides free consultations and will be happy to discuss any potential legal issue, even if you are from a different state. If you need any kind of legal services, Mr. Edwards will be there for you in the Clutch! For more information see ClutchCityAttorney.com and please contact him at: [email protected] and/or 713-515-1420.
Also, if you would like to see Mr. Edwards discuss a certain legal topic that you are interested in or need an answer to, please send an email to Mr. Edwards at the address above and he will gladly consider any and all suggestions.