David Slaone:
What to Do if Stopped for DWI
Most
people arrested for DWI in the Fort Worth area play right into the
arresting officer’s hands when stopped. They do so by being cooperative
and giving the officer all kinds of evidence to convict them and
suspend their driver’s license that the officer would not have
otherwise had. The most common and damaging mistakes include submitting
to a variety of coordination tests and answering a variety of damming
questions while believing if they’re cooperative with the officer the
officer might let them go. Not so! By the time an officer asks a driver
to step from their car for sobriety testing their belief is that the
person is likely impaired and their intent is to take them to jail. If
a driver is the least bit impaired they’re not going to “pass” these
tests. These tests are designed for failure. The best thing to do is
simply refuse to submit to all testing and refuse to answer any
questions until an attorney is present. Remember, these police
encounters are likely being videotaped with audio and video recordings
(via a dash mounted camera in the patrol car and wireless microphone
concealed on the officer.) So the best thing to do is say as little as
possible, do as little as possible, and to be as polite as possible.
Yes, they’re probably going to jail, but they were going to jail
anyway! Better to beat the rap overall than to loose it badly by making
a foolish attempt trying to beat the ride. By submitting to testing the
driver gives the officer all kinds of things to talk about when he gets
on the stand, which in turn, gives them the ability to make someone
appear to be much more impaired than they actually were. By reading
this, one should conclude the deck is clearly stacked against them if
they have had ANYTHING containing alcohol to drink and are stopped for
suspicion of DWI. People arrested for DWI, DUI and DUID in the Fort
Worth area need to retain an experienced criminal trial attorney
immediately. Pleadings to preserve their driving privilege need to be
filed within 15 days of their arrest.
Field Sobriety Testing
“Failing”
a field sobriety tests is much easier than one thinks! Indeed, most
sober people cannot “pass” these tests. The results are very subjective
and have little to do with whether someone can “complete” the tests.
The officer is not looking for that. He or she is looking for “clues”
of impairment rather than trying to see if the person can complete the
test. There are basically three tests officers in the Dallas and Fort
Worth area use:
Nystagmus Gaze Test:
This
is where the officer asks a driver suspected of driving while impaired
to hold their head still and follow the movement of an object (usually
a pen) with their eyes as they move it both horizontally and vertically
across the driver’s field of vision. What they’re looking for is a
jerking movement in the eyes, which occurs in everyone after consuming
any amount of alcohol, as well as other reasons. They look for jerking
when the eye follows the object, or is angled at 45 degrees. This
jerking will also occur if the tests are performed too long by
fatiguing the muscles that control the eye. The jerking that occurs in
the eyes when fatigued is no different than the jerking that occurs
with other muscles in the body when tired or strained. So even if
Nystagmus is not apparent when an officer first begins the tests, if he
or she does it long enough, Nystagmus will occur. Additionally, anyone
who has had anything to drink at all will usually demonstrate all clues
in this test. Conducted long enough, those who haven’t been drinking at
all will demonstrate the same clues. Rarely does an officer who has
conducted a Nystagmus test say there weren’t “clues.” Anyone who agrees
to take this test for an officer should plan on failing it.
One Leg Stand:
Few
people sober or not, can perform these tests without practice without
showing “clues” of intoxication. In these tests, an officer will ask
the driver to lift one foot off the ground at least six inches, for 30
seconds. They’re to do this while looking down at their toe, and
counting out loud, one-one thousand, two-one thousand, three-one
thousand, and so on. By having the driver perform these two tasks at
once, it splits their attention, making both much more difficult. Even
if the driver is able to perform this tasks, they’ll likely fail the
tests, because in this test the “clues” the officer is looking for are
very subtle and includes swaying; using arms to balance, (or even
slightly moving the hands or arms) loosing count, or putting the foot
down and picking it back up during the tests (even though during
instructions the officer implies that is okay.) Most people without
practice cannot perform these tasks as perfectly as expected without
having anything to drink, let alone with a few beers on board. The
problem can be worse if the person is overweight, has inner ear
problems or has problems with their feet or legs. This test is only
supposed to be performed for 30 seconds. More and more officers are
ignoring their training and requiring the tests be performed for longer
periods till the driver eventually becomes fatigued and messes up. The
driver has just failed that one! Rarely does anyone take this test
without the officer noting at least two or three “clues.”
Walk and Turn:
Few
people sober or not, can perform these tests without practice without
showing “clues” of intoxication. In this test, the officer will ask a
driver while looking down and his arms at his side to take nine
heel-to-toe steps in a straight line, turn using a series of small
steps, and take nine heel-to-toe steps back to the starting point.
During instructions for this test the officer will ask the driver to
stand with his heel to toe, and arms down at his side while facing the
camera. The “clues” they arelooking for actually begin while they’re
giving instructions, so the test actually begins long before the driver
believes. The “clues” in this test include again swaying or moving or
using the arms to balance. Other clues include beginning the tests
before the officer says; not clearly touching heel to toe with each
step; turning without using a series of small steps (which nearly
everyone messes up); not counting out loud, etc. Again, without
practice this is difficult for someone who hasn’t been drinking to do
as perfectly as is required not to demonstrate “clues” of intoxication.
After
reading this, one should reasonable conclude it’s just best not to play
a game they cannot win. Any of these “clues” coupled with a smell of
alcohol is about all that’s needed for a jury to convict someone of
DWI. People arrested for DWI, DUI and DUID need to retain an
experienced criminal trial attorney who is aware of and can effectively
educate a jury and expose these ploys used by the police to make
someone appear much more impaired than they actually are.
Breath and Blood Test:
Breath
testing devices employed by the police are inherently inaccurate. Even
their manufacturers will not guarantee their accuracy. They all operate
on the flawed assumptions that all people metabolize at the same
rate(and release through their breath) the alcohol they have consumed.
If everyone had identical metabolisms; eaten the same thing; drank the
same thing, and the tests were administered identically, perhaps this
device could give an accurate measurement of someone’s blood alcohol.
It cannot. Also, few safeguards are taken to insure the sample is not
contaminated by residual alcohol found in the throat or esophagus of
the accused at the time these test are administered. A subtle hiccup or
burp that goes unnoticed by the accused can produce artificially high
tests results. A breath alcohol reading above .08 in Texas is ALL that
is required to convict a driver of drunk driving, no matter how sober
they appear outwardly. Most drivers correctly refuse to submit to any
breath testing due to the inaccuracy of these tests and the devastating
stigma that would form in the minds of a jury with an artificially high
result. Blood testing, produces a much more accurate result. But the
results are typically higher than those obtained by a non-contaminated
breath test. Anyone who believes they may have had more than few drinks
or beers should refuse to participate in all chemical testing. A driver
has the absolute right to refuse to submit too breath of blood testing.
There can be circumstances where the police are allowed to take a blood
sample without a driver’s consent. However, this consent should never
be given by a driver who has been drinking.
WAYS TO AVOID DWI:
Clearly,
the deck is stacked against a driver who has a few beers on board. The
best time to plan for being stopped is in the beginning of the evening,
and not when a driver sees those lights in their rear-view mirror.
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Staying
home to drink, designating a driver, or eagerly surrendering the keys
to someone else if they’re offering to drive is by far the safest way
to avoid a DWI.
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If a driver is alone, and after an evening out doesn’t feel safe to drive, they should call someone to come get them, or without placing the keys in the ignition
sleep a few hours before attempting to drive. If the police find them
asleep in their car they may still arrest them for public intoxication,
but that’s far better than a DWI. Again, they should not put the keys
in the ignition! The law prohibits operating a motor
vehicle while impaired. Starting the car, running the heater or air
conditioning and playing the radio have been considered “operating” the
vehicle by some courts.
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Frequent
partiers should just leave a gym bag in their car containing essential
toiletries and a change of clothes. That way they’re prepared to stay
wherever they are when their lifestyle has rendered them unsafe to
drive. They should make a habit of just staying put. There are a few
unlucky ones that get caught their first time, but the vast majority of
people accused of DWI, DUI or DUID are those who routinely drive after
consuming intoxicants.
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If
someone drinking knows they’re going to have to drive, they should
develop an accounting method that is simple to keep up with how much
they’ve had to drink. It is very easy for someone to loose count on the
number of alcoholic beverages they have had over the evening. For most,
a token system works best. They should decide on a token to collect
with each drink, and stick it in their pocket. Some ways to gather
token includes collecting a match book every time they go to the bar,
or licking the stir stick clean from each drink they’ve had and
sticking it in their pocket. Or for beer, doing the same thing with the
tab easily broken off the beer can, etc. At the end of the evening they
can count their tokens and determine exactly how many drinks they have
had, and from that make a more informed decision whether they should be
driving; and what to do if they are stopped. (NOTE: They should NOT
keep paper bar tabs or receipts in their car or on their person as an
accounting method, especially if they have been buying drinks for
others. The police often zealously search for these documents in
drunken driving arrests and give them to prosecutors to use as
evidence!) For the average person it takes four beers, glasses of wine,
or single-shot mixed drinks to bring them to the legal blood-alcohol
limit. If their accounting yields they have 4 or more alcoholic
beverages they would be wise not to drive. If they do and get stopped,
they would be wise NOT to submit to ANY sobriety testing. They should
politely refuse and request an attorney before answering any questions.
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Most
police officers will try to tell a driver they are not entitled to have
an attorney before answering questions of deciding whether or not to
submit to testing when stopped for suspected DWI. Every citizen needs
to understand they have an absolute right not to answer police
questions if they are being detained. Also many police officers will
tell a driver they will be arrested if they do not perform sobriety
tests. What they don’t tell them at this point is they are probably
getting arrested regardless. Every driver has an absolute right to
refuse to participate in ALL sobriety testing. At trial, the burden
will be on the state to prove the person was impaired. It is not up to
the person accused to prove they weren’t. The driver who has been
drinking who takes these tests will likely loose the rap and endure
high fines, driver’s license suspensions, and perhaps a jail term
trying to beat the ride and minor inconvenience of being arrested and
having to bond out of jail.
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Also
parents should also take a realistic approach when imposing rules on
their teen drivers. Many teenagers have landed in jail or the morgue by
driving when they shouldn’t have been, and/or faster than they should
have been for fear of missing a curfew. Most parents don’t want their
kids out drinking, but kids make mistakes. Parents should open a
dialogue on the topic of drinking and driving, and structure the rules
so that a youthful inebriated driver is not forced onto the highway
just to avoid certain punishment over a curfew. They need to understand
that a late night call with an honest disclosure from their teen that
is reluctant to drive is highly preferred over that call from jail; or
knock at the door by a police officer or medical examiner.
SEARCH WARRANTS:
The
latest craze in Fort Worth is for the police to procure a search
warrant to compel blood testing of someone arrested for DWI. In this
case a judge orders an officer to search an accused for evidence of
their guilt, in this case, alcohol in their blood. To obtain a search
warrant they need “probable cause” or reasonable grounds to believe a
person was driving while impaired. The police will have very limited
facts to support this reasonable belief for a warrant and the warrant
may be more successfully challenged if the driver refuses to submit to
any sobriety testing at the outset.Of course collecting blood with a
warrant requires the police to employ medically approved methods to
accomplish this. They don’t seek search warrants in every case, but the
frequency of use of search warrants in DWIs, DUIs and DUIDs is on the
rise. Short of physically refusing, an arrested driver should verbally
politely refuse all sobriety testing. Period! This includes granting
permission to take a blood sample. They should NEVER just submit
thinking the police are going to get a warrant anyway.The more time
that passes between arrest and collecting their sample, assuming the
police are able to get a warrant at all, the less credible the results
will be in court. Also, even with a warrant, most hospital emergency
rooms will attempt to get an arrested driver to sign a “Release” or
“Authorization for Treatment” before drawing blood. Nothing in the law
says a driver must waive their right to sue for malpractice should they
become infected by that needle, or waive their right to outright refuse
medical treatment just because they’re under arrest. Most hospitals
will not touch a conscious potential “patient” if they or a relative
have not given them written permission to do so. How they'll respond
when they have an officer with a warrant and a patient saying they
don't want to be touched will likely vary greatly. The hospital
employee may refuse to perform the procedure of drawing blood, opting
to follow their procedures rather than the court's order. But the
search cannot be challenged later in court if the driver just agrees to
allow it.
Other Things to Know
Many
people aren’t behind the wheel, but are merely in close proximity to a
recently driven vehicle when they are arrested for DWI. The police must
find a way to place that driver behind the wheel. They ask. And the
driver tells them.Things a driver says to the police during an initial
encounter can be used in court, and usually are with a great deal of
officer’s elaboration. By the time it makes the arrest report a simple
statement like “I’m changing a flat” will be recalled as “I was driving
this car upon this public roadway a few minutes ago and had a blowout…”
Again, a driver who has been drinking should say as little as possible,
do as little as possible, and be as polite as possible. The jury will
be watching! People arrested for DWI, DUI and DUID in the Fort Worth
area need to retain an experienced criminal trial attorney immediately.
Pleadings to preserve their driving privilege need to be filed within
15 days of their arrest.