Dallas DWI Survival Guide Supplement – Mark T. Lassiter

1. You Are Being Recorded

First, know that from the moment you were pulled over you are likely being videotaped by a camera attached to the officer’s squad car. Every move you make will be dissected by the officer in an attempt to show you were intoxicated. Additionally, what you say is being recorded by a microphone attached to the officer’s radio. With that in mind, you should always strive to be as courteous to the officer as possible; even if you believe you were wrongly pulled over. Nobody likes a jerk and if you come off as a disagreeable person in the video, a jury will find it very difficult to find you not guilty in a trial.

2. The Tests the Officer Asks You to Perform Are Voluntary

Every test the officer asks you to perform is voluntary. The officer cannot force you to recite the alphabet, count backwards, perform the standardized field sobriety tests, or give a specimen of your breath or blood (a blood test may be required under a certain set of circumstances). Every test the officer asks you to perform is designed to assist the officer in making his case against you stronger. By declining to take the tests you are in essence not giving the officer any evidence to use against you in trial. If you perform the tests you allow an officer to articulate reasons for concluding you were driving while intoxicated, whereas without the tests, the officer would have to admit there is no way of truly knowing your level on intoxication, if at all.

However, there is a downside to refusing to take any tests. The officer will not be able to judge your intoxication level and will usually decide to arrest you. Additionally, the state will attempt to argue that you did not attempt the tests because you were in fact intoxicated. It is crucial to have an experienced trial lawyer at this point to be able to argue your case to a judge or jury.

If you elect to decline any test the officer is asking you to perform, a good way of doing so is to inform the officer that you understand the tests he is offering are potentially inaccurate and you do not feel comfortable doing the test.

3. What Sobriety Tests Should You Take?

There are generally three phases of tests an officer will offer: 1) Field Sobriety Tests; 2) Standardized Field Sobriety Tests; and 3) Breath or Blood Tests. Each test the officer asks you to perform is looking for specific things. The most common tests are listed in detail below. You will have to decide which ones, if any, you feel comfortable agreeing to perform.

A. Non-Standardized Sobriety Tests

These tests are not validated or recognized by the National Highway Traffic Safety Administration (NHTSA). They are not scientifically proven as reliable, but rather are more or less common sense tests. The tests include but are not limited to:

  • Reciting the alphabet starting with a letter (usually C or D) and ending on a specific letter (normally S or T) – testing your mental impairment
  • Counting backwards from a particular number (usually 44) and going down to a number (usually 23) – testing your mental impairment
  • The Romberg test – standing with your feet together, head up, eyes closed and estimating 30 seconds silently – the test evaluates how much you sway and how close you are to estimating 30 seconds without counting out loud
  • The six flags card – you are to read a series of paragraphs with words containing the letter “s” – the test looks to see if you are slurring your words

B. Standardized Field Sobriety Tests

These tests are validated by NHTSA, and are divided attention tests. These tests require you to perform tasks that you do not normally do, even though they are by definition designed to test whether you are functioning normally. It is at times difficult for a completely sober person to complete the tests properly. There are 3 tests and are as follows:

  • Horizontal Gaze Nystagmus (HGN) – Nystagmus is the involuntary jerking of the eye. It occurs in everyone, regardless of whether he or she has been drinking. Alcohol and drugs magnify the nystagmus effect, but so can a variety of other factors, including illness or injury.
  • Walk and Turn – This test asks you to take nine heel-to-toe steps along a real or imaginary line, turn (by a series of small steps), and take nine heel-to-toe steps back.
  • One Leg Stand – You will be asked to raise one leg about six inches off the ground, with the foot parallel to the ground. You will then be told to look at your foot while counting “one thousand one, one thousand two” until either told to stop or for 30 seconds.

C. Portable Breath Test (PBT)

The PBT is a device carried by most DWI squad officers. It is a portable device designed to estimate your blood alcohol content (BAC) at the scene. You will be asked to blow into a mouthpiece for several seconds until a specimen of your breath is collected. Different states have different laws regarding the admissibility of the results of this test. In Texas, the results of a PBT are not admissible in court.

Even if you decline every other test, giving the officer a PBT sample may save you from being charged with a DWI. Generally there is no downside to providing a PBT sample, because the sample score will not be admissible in a Texas court. Only you can decide what you feel comfortable doing, however, to aid in your decision, the following is a list of pro’s and con’s in taking the PBT.

  • Pro – if you blow under the legal limit the officer may let you go
  • Pro – if the officer decides to arrest you in spite of blowing a score under the legal limit, in a courtroom he can be asked to reveal that fact
  • Pro – if you blow over the legal limit, while the officer may not tell you the score, he will probably arrest you and you will know to definitely not provide a sample at the jail
  • Con – if you blow a score that is particularly high, and the law changes allowing the admission of PBT scores, you could potentially face stiffer penalties if convicted

4. Breath and Blood Tests

A. Intoxilyzer Breath Test

Most experienced DWI Attorneys agree that the Intoxilyzer used in Texas is not completely accurate and therefore should not be taken. There is the possibility of false readings from a variety of circumstances. Additionally, the instrument could malfunction or have operator error. For more see the article: An In Depth Look At The Intoxilyzer.

In Texas, while the breath test can be refused, by applying for a driver’s license in the state you have “impliedly consented” to giving a specimen if pulled over. When you refuse to take the test offered by the officer at the jail, the consequence is you forfeit your license for a period of time. At this point you have likely already been arrested and are at the jail. If you elect to blow, you will have given the state the one piece of definitive evidence they are looking for to make their case stronger if the result is .08 or more. However, even if your result is below the legal limit, the state can do what is called “retrograde extrapolation” to show that at the time of driving your intoxication level was above the legal limit. After examining all the facts, you must decide based on the facts of your case whether you feel comfortable providing a breath specimen.

B. Blood Test

This test is considered to be the most accurate out of all the tests offered by the police. However, in many instances this test is not even offered because it is difficult and time consuming to bring you to a place where your blood can be properly drawn. If you feel that you would be willing to take a blood rather than breath test, simply inform the officer that you will agree to take a blood test.

There are certain situations in which an officer can force you to take a blood test. Texas law requires police officers to meet certain requirements before being able to require you to take one of the test: 1) There is a DWI arrest and an accident; 2) the officer has a reasonable belief that any individual has died or will die as a result of the accident; 3) an individual, other than the person arrested, has suffered serious bodily injury; and 4) the individual arrested for DWI refused to give a specimen voluntarily. Additionally, an officer with a valid search warrant can require you to take a blood test.

Disclaimer: The information in this article is for general guidance on your rights and is not legal advice. If you need more details on your rights or legal advice about what action to take for your specific case, please contact a Dallas DWI attorney.


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