Yes. We have had juries return not guilty verdicts in breath test cases. In fact, some of those cases involve results of two to three times the Texas legal limit of .08. Defending a breath test may involve hiring expert consultants and witnesses to explain the process and deficiencies to the jury. Breath tests cost more to defend but are just as winnable as refusal cases.
Category Archives: Drunk Driving
A lawyer told me once to always refuse the breath test, but the police have charged me anyway. Can the Police do this?
Yes. In Texas, a person may be charged with DWI if an officer believes that person drives without the normal use of his mental or physical faculties due to alcohol or a drug or a combination of the two. In other words, if the officer believes your mental or physical faculties were at all less than normal you can be charged and tried for DWI. In fact the refusal can be used against you.
A good attorney can demonstrate that refusing tests is your RIGHT and you should not be punished for asserting this right. A skilled trial attorney will explain to the jury that submitting to an invasive or unreliable test may actually demonstrate rational thought and be evidence that your mental faculties were normal.
Situations may vary, but in most cases, the simplest, most effective defense is for the suspect to POLITELY refuse to participate in ANY testing or questioning. Just say no!
The only thing you must do in a DWI investigation situation is to provide the officer with your proper identification. All sobriety testing is voluntary on the part of the suspect.
The “Just Say No” defense is grounded in the simple premise that it is almost impossible to establish that someone is intoxicated if the individual merely sits (or stands) there saying nothing and doing nothing. It’s hard to screw up “doing nothing.”
This is NOT to suggest that you should drive drunk, or be irresponsible in operating a motor vehicle. No amount of legal advice can keep a drunk driver from being arrested, or killing themselves or someone else. Use your head, and drive responsibly! Generally speaking, if you are stopped for DWI in Texas, you are better off to politely refuse to do ANY testing.
The first test the police generally request is horizontal gaze nystagmus – the “follow the pen with your eyes” test. As soon as the police request you to perform this test, simply and politely refuse. Then refuse all other testing as well.
Many people seem to have trouble saying no to a police officer. The easiest way is to simply turn the tables on the officer: “Officer, which tests am I required to take? Oh? I’m not required to take ANY tests? Well, then, I know that I’m not intoxicated, but since I’ve never done these tests before, I’m not going to take them now.”
Some lawyers have stated that refusing all of the tests will result in you being arrested every time. This is clearly not the case. I have had several clients utilize the “politely refuse all tests” approach, and the officers let them drive off, or let them call a friend to drive them home. If you refuse to take any of the tests, even if the officer DOES arrest you, you stand an excellent chance of beating the case. No tests basically equates with no evidence, and no evidence almost always leads to a not guilty verdict.
If you TAKE the tests, you basically are giving the police all of the evidence they need to convict you, and you are handing it to them on a silver platter!
I refused to take the breath test. Can the fact of my refusal be admitted in court?
YES. Just like you should not take any tests, you shouldn’t answer any QUESTIONS either. Remember, anything you say can and WILL be used against you.
While there are driver’s license suspension consequences for failing or refusing to take a breath or blood test. Just IGNORE those driver’s license consequences. There is NO driver’s license consequence which is worse than a DWI conviction!
License suspension problems are temporary at worst, and in most cases you can easily obtain an occupational license to replace your regular license. License suspensions are temporary. DWI conviction are forever!
DWI No Refusals
In Texas, holiday weekends have been renamed “No Refusal Weekends”. This program has been designed in a cooperative effort between judges, prosecutors, and the police, usually observed and sometimes funded by MADD. All in an effort to convict you of a DWI (Texas) whether you deserve it or not. Local police departments and sheriff departments may announce a no refusal weekend, but you can count on all of the following as being designated a no refusal weekend:
Memorial Day Weekend,
Fourth of July Weekend,
Labor Day Weekend,
Halloween and Thanksgiving weekend through Christmas and New Years eve.
If you have only one or two drinks at a holiday party in Houston, Texas, for example, and you are stopped for an innocent traffic violation, then it is likely that you will be arrested and your blood will be forcibly taken from you.
If you do not fall within one of the statutorily created “NO REFUSAL” exceptions to reasonable searches and seizures guaranteed to you by the 4th Amendment, and which are set forth in Texas Transportation Code §724.012, then the police will seek a search warrant to take your blood.
When the police get the search warrant for your blood, and if you then do not cooperate in the taking of your blood, your blood will be forcibly taken from you by the police.
So what can you do after being arrested during a NO Refusal Weekend?
- Hire an experience criminal defense attorney IMMEDIATELY. Some of your rights are time sensitive. For example the request for a hearing to protect your driver’s license must be made within 15 days of your arrest.
- Be prepared to hire a toxicologist or blood expert to combat the blood test results and place questions in the juror’s mind about the reliability of the results.
- You will be going to trial. Unless you can accept the conditions and limitations probation will place upon you know that this case will not likely be dismissed or reduced and you will need to begin to prepare for trial with your attorney. This included interviewing all witnesses to your drinking that night and committing these witnesses to testify on your behalf in a jury trial.
Refusals and blood tests can be defeated in trial but obviously it is easier to fight a DWI with no breath or blood tests. In addition many jurors trust blood results more than the breath machines used throughout the state. Get a driver or friend who doesn’t drink on holiday weekends so that the price of one night of fun won’t haunt you for a lifetime.
What is a No Refusal Weekend?
TEXAS DRUNK DRIVING NO-REFUSAL WEEKENDS
Unfortunately, Texas has some of the worst statistics when it comes to DWI fatalities. There are laws in place to prevent intoxicated driving and to punish those involved. But these laws are only somewhat successful in limiting the number of deaths on Texas roads. Due to the popularity of many crime dramas on television, jurors’ perception of what’s required for sentencing is often skewed. This inappropriate application of the burden of proof, combined all too often with a suspect’s refusal to submit to a scientific or chemical sample, has presented a significant problem for law enforcement.
To combat these issues, police departments across the state have begun instituting “no-refusal weekends” — a program that allows law enforcement to collect a blood sample from people pulled over for suspected DWI regardless of whether the individual refuses testing. In Texas, all drivers are considered to have given implied consent to provide a breath or blood sample if an officer is lawfully requesting it during a DWI stop. Despite that fact, roughly half of all suspects still refuse.
During a no-refusal weekend, if you are suspected of DWI and you refuse to provide a breath sample, you will be forcibly made to provide a blood sample by means of a streamlined process set up to ensure accuracy and admissibility of the evidence in court. Without the program, an arresting officer must take a DWI suspect to a separate locale and await approval of a warrant to obtain a blood sample. During a no-refusal weekend, this process is condensed. At a central location, a suspect is processed for arrest, has a warrant drawn up by prosecutors and reviewed and approved by a judge, and goes through the blood collection process with a nurse — all while being videotaped to ensure that evidence is preserved and accurately depicted for a later court date.
Due to the higher number of impaired drivers on the road during holiday weekends, the first no-refusal weekend took place during Memorial Day weekend in 2007. Many impaired drivers went through the program — including 12 who went through the entire “blood warrant” process. Of those 12, 11 were above the statutory blood-alcohol limit in Texas. The evidence collected exonerated the other remaining person.
DWI Trial
This week I tried a DWI refusal. The case was 3 1/2 years old and was tried several years ago by another attorney and the client was unfortunately convicted. 3 1/2 years later the case is back in the trial court in Tarrant County after an appeal resulted in a new trial.
Three officers testified which is difficult in a refusal case. In many cases there is only the opinion testimony of one officer. In this case three testified as to my client’s intoxication.
What can you possibly do to combat this amount of opinion testimony?
1. You do NOT attack the cop. That will get you no where with the jury especially if the officer(s) are likable and come across as credible.
2. Question the memory of the witnesses and call their “opinion,” not their character into question.
3. Elicit sympathy by calling witnesses to introduce your client to the jury. Whether by having your client testify or calling friends who were present at the offense, make sure you give the jury an opportunity to get to know your client.
4. Because a refusal case involves no “scientific” evidence you must create sympathy which will make the jury hesitant to convict. In a case with no victim and no science and a likable client, the jury will be hesitant to convict.
This case resulted in a hung jury which was miraculous as the video was not good for my client. The key to this case and so many others is presenting a sympathetic client. Allow the jury to get to know your client as a human and not just a defendant.
Certifications
