Refusing a breathlizer after passing the field sobriety

[Powerdrive]

Originally Posted by Holysheepshit

I've ate Sonic burgers in jail too. Can you guess where that jail is??? LOL!!!

Friendswood. If I remember correctly.

[guest043013-2]

When you guys know the menu at different jails around Texas, I have to wonder about the company I keep.

[Powerdrive]

Ha Ha, I can't help that I am well traveled and screwed by every city I've lived in.

[cckid2006]

I was pulled over after my motorcycle with a bad carb stalled. Two motorcycle cops on overtime stopped me. The girl on the back of my bike thought I "passed". I refused a breathalyzer, but did offer to take a blood test (I only had three beers in approximately 8 hours). They hauled me down to the drunk tank (never going back). I ended up staying about 4 hours before I was released (thank you Mr. Hobby and the friends on the outside trying to get me out).

Got a cheap, but good lawyer, went to jury trial. Called people that were with me that night and testified myself (I've had witness training). Like someone else here said, cops lied (2 out of 3 of them). The motorcycle guys had to call in a car to transport me. My attorney did excellent voir dire on the prospective jurors. Jury deliberated a couple of hours. Managed to talk to a juror after - he said it took them that long to convince one juror (her brother was a cop and my attorney warned me about her) that I was not guilty. They wouldn't convict without the breathalyzer or blood test.

Cost $3000 - my attorney said his price doubled after our win. I take a lot cab rides now.

[Powerdrive]

Originally Posted by cckid2006

I was pulled over after my motorcycle with a bad carb stalled. Two motorcycle cops on overtime stopped me. The girl on the back of my bike thought I "passed". I refused a breathalyzer, but did offer to take a blood test (I only had three beers in approximately 8 hours). They hauled me down to the drunk tank (never going back). I ended up staying about 4 hours before I was released (thank you Mr. Hobby and the friends on the outside trying to get me out).

Got a cheap, but good lawyer, went to jury trial. Called people that were with me that night and testified myself (I've had witness training). Like someone else here said, cops lied (2 out of 3 of them). The motorcycle guys had to call in a car to transport me. My attorney did excellent voir dire on the prospective jurors. Jury deliberated a couple of hours. Managed to talk to a juror after - he said it took them that long to convince one juror (her brother was a cop and my attorney warned me about her) that I was not guilty. They wouldn't convict without the breathalyzer or blood test.

Cost $3000 - my attorney said his price doubled after our win. I take a lot cab rides now.

Well isn't it only a jury panel of 6 people? Hell, you only need one person to say not guilty right?

[cckid2006]

Originally Posted by medingdong

Well isn't it only a jury panel of 6 people? Hell, you only need one person to say not guilty right?

The juror I talked to said it was 5 to 1 vote for acquittal on first vote and they talked the holdout into it. This is a criminal proceeding so I know 1 person can hang a jury, but I think you have to have a unanimous verdict for guilt or innocent verdicts. Any attorneys listening?

One other interesting aspect of the ordeal. When they put me on video at the station - yes I still held out a desperate hope they would let me go if I did good on the video, which I did - the officer read me my rights and when he asked me a question, I requested an attorney be present. Like an idiot he continued asking me questions which I answered. My attorney objected to the video being entered at which time the judge ruled they could view the video, but not listen to it.

[chrissy]

Originally Posted by aznlvr11

Field sobriety tests are designed for failure. Very few can do all of the circus tricks they ask you to perform. When was the last time any of you said your ABC's backwards? Or put your heels and toes together (which is not a natural stance), tilted your head back with your eyes closed, and touched your nose, all without wobbling? Or walked a straight line, heel to toe, without letting your arms come up for balance (again, not natural)? Try it, you'll be amused, but they won't.

Lol...very true! I just tried them and LMAO when I could'nt even do it sober at 6 pm..lol..

[ShysterJon]

I think there are a few good anecdotes in this thread. But one problem with anecdotal evidence is facts and circumstances differ from case to case, so it's iffy to apply the outcome in one specific case to other cases.

On the other hand, there are some really glaring misstatements of the law in this thread. For example, refusing to give breath or blood is NOT evidence (and CERTAINLY not per se proof) of DWI. Writers in this post confuse the criminal DWI case with the ALR (administrative license revocation) case. Also, cop cars parking outside bars isn't illegal "profiling," just like cops parking in areas with lots of crack houses isn't profiling.

Sometimes I come across a thread like this and change hats from lawyer to janitor and clean everything up, but it's college football season so instead I'm going to post an updated version of my Texas DWI Law thread. But I'll wait 'til after Texas-okiehomo because I wouldn't want to inadvertently help some okie hillbilly avoid getting arrested driving his crappy dooley shitfaced in my fair city and not getting ass-banged in Sterrett because he's wearing a cute polyester lesiure suit.

But I digress.

In Texas, the State can prove DWI either or two ways or both ways because "intoxicated" means:

"(1) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (2) having an alcohol concentration of 0.08 or more."

See Texas Penal Code § 49.01(2). With this definition of "intoxicated" in mind, here are a few basic principles, which when applied, should help a person avoid being charged with DWI or, if he is charged, being punished harshly:

1. Like ck1942 said, don't drink and drive. It's ridiculously stupid and selfish. I don't care if you die. I care if you kill my daughter, my wife, me, my family, my friends, or some other innocent person.

2. If you ignore this advice and drink and drive anyway, and you are asked to give breath or blood:

a. if you have had any alcoholic beverage within 4 hours of the stop, then don't voluntarily give breath or blood or perform FSTs (field sobriety tests). (In the past I've said 12 hours, but I'm fairly certain from attending expert seminars that pretty much everybody is going to have a BAC of less than 0.08% after 4 hours have passed since the last drink.)

b. if you can't CLEARLY remember when you had your last drink, then don't voluntarily give breath or blood or perform FSTs. You may read the foregoing and think, but ShysterJon, if I refuse to blow, my driver's license will be suspended! Yes, in Texas a person's license is automatically suspended for 180 days if he refuses to blow or give blood (but only 90 days if he voluntarily gives breath or blood and it shows a BAC of 0.08% or higher). But trust me, if you pick up a DWI case, your license being suspended will be the least of your worries. In Dallas County and all counties I know of in North Texas, a person whose license is suspended for a breath or blood refusal can easily get an occupational driver's license that will allow him to drive for up to 12 hours each day, overriding the suspension. Driving on an ODL may present inconveniences, but my view is it would be more inconvenient to share a bunk at Sterrett with a big guy named 'Junior' because I was a smart guy and thought I could beat the intoxylizer.

3. Do I need to say it? Okay, I will:

STFU!

In 95% of the DWI videos I've watched, the client admits having had something to drink. But I'm really not complaining. If people didn't make such admissions, I'd have to sell insurance or something for a living.

[cckid2006]

Originally Posted by ShysterJon

On the other hand, there are some really glaring misstatements of the law in this thread. For example, refusing to give breath or blood is NOT evidence (and CERTAINLY not per se proof) of DWI. Writers in this post confuse the criminal DWI case with the ALR (administrative license revocation) case.

I respectful disagree, in my case, the jury would not convict because of the lack of a breathalyzer or BAC evidence. I really don't see that providing the quotes from the Penal Code is as helpful as people's real life experience. If you are really a lawyer, you know there is no black and white - just shades of gray.

[ShysterJon]

Originally Posted by cckid2006

I respectful disagree, in my case, the jury would not convict because of the lack of a breathalyzer or BAC evidence. I really don't see that providing the quotes from the Penal Code is as helpful as people's real life experience. If you are really a lawyer, you know there is no black and white - just shades of gray.

I think you misunderstood what I wrote. The juror in your case told you they wouldn't convict unless they had breath or blood evidence. I wrote that a LACK of breath or blood evidence can't be considered proof of GUILT.

Thanks for expressing some doubt that I'm a lawyer. Such healthy skepticism keeps me on my toes. But a few people here might tell you two things are certain: I'm a lawyer and I'm an asshole, and not necessarily in that order.

[Waldo P. Emerson-Jones]

SJ, assume I've had a drink or two in the last few hours, cop pulls me over for some traffic violation, and during the stop asks me if I've been drinking. I don't think I'm intoxicated and don't think there's any obvious signs I've been drinking. What's best response? "No sir," or "officer, I respectfully decline to answer that question."Obviously, my best case scenario is to avoid arrest if possible. Refusing to answer if I've been drinking even when I don't think I'm intoxicated seems likely to lead to certain arrest. Otoh, I don't want to cause unnecesary problems for myself by getting caught in a lie. Am I under a legal duty not to lie to police when asked an incriminating question?

Also, can prosecution introduce into evidence a refusal to take a fst or breathalyzer? I'm guessing they're out under 5th amendment?

[Irishlad4u]

QUOTE: "...assume I've had a drink or two in the last few hours, cop pulls me over for some traffic violation, and during the stop asks me if I've been drinking. I don't think I'm intoxicated and don't think there's any obvious signs I've been drinking. What's best response? "
　
ANSWER: If the cop smells alcohol on you, and you lie and say you haven't had any alcohol, he's going to find some way to arrest you... Lying pisses the cop off more than anything else. In Austin, the APD policy, per Police Chief Art Acevedo, is to arrest everyone who is driving and who has an odor of alcohol about them, and then let the County Attorney sort it out later. This is why Travis County regularly leads the state in DWI arrests (50,000 plus last year), and also, ironically, why the county leads the state in DWI dismissals, deferred prosecutions, and reductions...because county prosecutors are handed such lousy cases where the defendants are obviously not intoxicated (remember Jeff Ward of KLBJ). Remembering that everything you say and do is on video, and that a jury may see it later, a refusal to answer the cop, and/or being disrespectful, will look bad on the video and bad to a jury, and will not keep you from going to jail.

A better response would be: "Yes sir, I had 2 Miller Lites (or whatever) from about 2 pm till about 4 pm, ( four hours ago).” Try to be truthful. Mention you also had a hamburger and fries right afterwards. The fact that you can articulate and remember EXACTLY how many beers you’ve had, where you had them, and what time you had them, will show a potential jury that you were conscientious and sober enough to keep track of your consumption, will look good to a jury (and attorneys), and will provide some evidence of sobriety, in contrast to whatever the cop says is evidence of intoxication. Of course, if you ARE intoxicated, you shouldn't be driving...and STFU is best strategy...While you still go to jail, you don't serve yourself up to the prosecutor on a silver platter.

As far as Field Sobriety Tests go: It doesn't hurt to practice FSTs when you're sober. Find them online, and study them. I've seen intoxicated lawyers who have practiced the FSTs pass them with flying colors, and avoid arrest thereby. Heck, why not even test yourself before you decide to drive? See if you can pass the one-legged stand, or the walk and turn, before you even get in the car. Presuming that you’re going to have to do them when you drive, may make you think twice about driving at that moment.


Portable alcohol/breath analyzers are cheap and can be bought off the internet. They are good for parties and can be fun and educational, keeping track of everyone’s breath/alcohol concentrations. Keep one in your car. Test yourself, and your friends, before anyone drives. If there's any question about it, why wait till you get stopped before you discover that you're 0.08% or above?

It’s a judgment call when you decide whether to do the tests or not, or whether to blow into breath analyzers or not. Case by case basis. If you’re sober and know it, take the tests. If you’re not sure if you’re intoxicated or not, you probably should have waited to drive anyway, and it’s going to be a gamble if you take the tests. Bottom line is: You should know your own body and metabolism , and if you’re intoxicated, better you should know it before the cops do.

[cckid2006]

I slight problem with the above advice is that the breathalyzer is very inaccurate. If your sober, insist on a blood test.

[Guest082216-1]

You can refuse to answer ANY questions till you see a lawyer. Remember SJ advice? STFU. Dont help the officer make his case againt you. Dont talk about the weather, or sports. Dont ask for any kind of testing. Make them get a court order for a blood test. Time is your friend.They know exactly what they are doing. STFU.Even if your cold sober, you can still fail the FST. STFU and refuse to do any tests without a court order.

[Irishlad4u]

Difference in professional opinion...