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37 Minutes Read

WHAT SHOULD I DO IF I GET STOPPED AND TESTED FOR DWI? 

John Gioffredi has a perfect “10.0 - Superb” rating by the AVVO online attorney rating service, being widely recognized by the legal community for superb professional conduct and experience. He has over 130 five star reviews on that website alone. He was the 2014 president of the 600 member Dallas Criminal Defense Lawyers Association, and has been listed as a “Best DWI Lawyer” for 2014, 2015, 2016, 2017, 2018, 2019, and 2020 in D Magazine. He has also been listed as a “Texas Super Lawyer” by Texas Monthly in 2014, 2015, 2016, 2017, and 2018, and was voted by his peers as one of the Top Ten DWI Lawyers in Dallas in 2013, 2014, 2015, 2016, and 2017, the only five years that survey was done. He is peer-rated “AV Preeminent – 5 Stars” by Martindale-Hubbell / Martindale.com.


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For starters, here’s a very brief lecture: There is no excuse for driving while intoxicated! There are plenty of safer options available these days. If you get a DWI, I’d be honored to try to win your case for you, but I’d be happier if you just didn’t drink and drive! If you drive drunk, you could kill someone. Heck, you could kill ME, and that would suck! No amount of legal advice or expertise can bring back a dead person. So don’t drive drunk! Now on to business:


I am attorney John Gioffredi. I’ve been defending and winning DWI cases in the Dallas area since 1987. I have won well over 300 DWI trials for my clients. In this article, I will share a good deal of information that I have learned over the years about DWI cases.


DWI convictions can be incredibly expensive. Most DWI convictions will cost the defendant at least $9,000. The Texas Department of Transportation has billboards announcing the estimated cost of a first offense DWI to be at least $17,000, when all is said and done. In some cases, a DWI can cost a person their job, or prevent them from obtaining new employment. Some landlords will not rent to someone with a DWI, and a DWI can cause significant problems in divorce or child custody cases.


Over 10,000 people a year are arrested for DWI in the Dallas area alone. The next person could be you. The best way to beat a DWI case is for you to be prepared for it. And the first step in preparing for it is to acknowledge that it might actually happen to you! Until you acknowledge this reality, you’ll never be motivated to take the steps necessary to get prepared. If you are not prepared, the police will take full advantage of your ignorance. They have a written, step-by-step plan detailing EXACTLY what they are going to do to first arrest you, and then convict you of DWI. Their plan is very thorough, and has been derived from decades of experience. If you are someone who even occasionally drinks and drives, you would be wise to develop a defensive game plan just in case you are ever stopped. With just a little advanced planning, you should have more than a fighting chance to beat a DWI! 


If you learn the information contained in this article, and create a game plan, you will greatly increase your chances of beating a DWI charge. So let’s get started:


If you are a “just tell me the bottom line” type of person, here are the six basic rules for defending yourself against a DWI when the officer stops your vehicle. The rest of the paper goes into depth about these rules:


RULE ONE: Politely refuse to take any tests (except for ones that you know you can pass.)


RULE TWO: To the extent possible, keep your damned mouth shut! Anything you say can and will be used against you. You have the RIGHT to remain silent. Do you have the INTELLIGENCE to do so?


RULE THREE: Learn this statement and use it: “Look officer, I KNOW that I’m not intoxicated, but I think your tests are designed to make people look drunk. Which of your tests am I REQUIRED to take?”


RULE FOUR: Chances are everything you say and do with be recorded at all times during your encounter with the police, and the judge and jury will see that video. Only say and do things that will make you appear SOBER on the video. Don’t say or do anything that might make you appear to be drunk!


RULE FIVE: If the police tell you that they have a warrant to take your blood, immediately tell them some version of this: “Man, that’s not fair! I know I wasn’t drunk when you stopped me, but I had about three shots right before I left the club. I would have gotten home before those shots hit me, but you arrested me, and now, by the time you take my blood, that alcohol will show up!” 


RULE SIX: If the officer asks if you have taken any medications your answer is NO! Many medications make you drowsy and have an interactive effect with alcohol. If you admit to taking a medication and the officer also smells alcohol, that’s almost a guaranteed DWI arrest! 


BONUS TIP: Always keep a copy of any prescriptions in your wallet or purse. If you are arrested (for a DWI or an outstanding ticket warrant, or whatever) and you have prescription pills on you, you’ll be arrested and charged for possession of a controlled substance unless you can show them the Rx right then. You need to have that prescription on you. They will not give you time to go home and get it for them!


When it comes to fighting DWI cases, unless there is a breath or a blood test (more on those later) more people are convicted based upon what they say than what they do. There are several legitimate reasons why a person can’t walk a straight line, or balance on one leg, but there aren’t many excuses for a person slurring badly, or not being able to recite the alphabet or count backwards. And it’s very difficult to win a DWI case if the defendant has stated on a video they shouldn’t have been driving, or on a scale of 1 to 10, they’d rate their own intoxication level as a “5 or 6.” Don’t agree with the officer when the officer asks “Would it be fair to say that you feel a little bit buzzed at this time?” The best answer to that question is “No. I feel perfectly normal.”


Everything a police officer says and does during a DWI investigation is an attempt to obtain incriminating evidence against you. THINK before you take any tests or answer any questions, and don’t say stupid things that will incriminate you! Avoid the dreaded statement “I couldn’t do that sober!” When you say “I couldn’t do that sober,” the jury hears: “Oh. That means he’s drunk right now,” and you lose your case right there. If the police ask you, “On a scale of 1 to 10, how intoxicated are you?” the only intelligent answer is “0 – I’m not intoxicated at all.” Anything else is an admission that you are intoxicated – at least to some extent!


Situations may vary, but the easiest DWI advice is for the suspect to simply refuse to participate in any questioning or DWI sobriety testing. The best way to refuse to participate, I believe, is to begin by asking the officer which tests you are required to take. The correct answer should be "None."


There are only four things you are required to do by Texas law in a DWI investigation: 1) pull over when an officer activates his emergency lights or otherwise communicates to you that you must stop your vehicle, 2) provide the officer with proper identification, 3) exit the vehicle upon request (passengers are also required to exit a motor vehicle upon the request of an officer [US Supreme Court case of Maryland v. Wilson, 519 US 408 (1997)]. I’ve seen police officers go ballistic and beat the hell out of people who refuse to exit the vehicle – and you don’t want that happening to you!), and 4) Provide a blood sample if presented with a warrant. Pretty much all other actions on a suspect's part, including participation in sobriety testing, are purely voluntary.


Why do I recommend that you politely refuse all sobriety testing? It’s just common sense if you think about it: In any bar after midnight, probably 30% of the customers (at the very least) are legally intoxicated. But you generally can’t tell which customers are intoxicated, and which ones aren’t, by just looking at them. The same is true with police (and judges, and jurors!) – nobody can tell if you are intoxicated just by looking at you! Unless you perform the specific tasks requested by the police, which are designed to make you look drunk, there generally isn’t enough evidence to convict you. Many times there’s not even enough evidence to arrest! “No tests” usually means “no evidence,” and no evidence usually means not guilty! That makes sense, doesn’t it?


Now here’s a quick quiz: During a DWI investigation, do you think that the police officers will:


Ask you to do fair tests, which will make you appear sober on a police video, or Ask you to do difficult tests, which will make you appear drunk? 


If you answered “A,” you are wrong, and you trust the police WAY too much!

If you answered “B”, you are correct, and at least partially understand what you are up against.


By the way, feel free to forward this information to any of your friends and acquaintances who may occasionally drink and drive. You may also want to program my phone number (214-739-4515) into your cell phone now – under “DWI Attorney” - just in case you or your friends may need it sometime in the future!


The first test a police officer will typically perform on a DWI suspect is the "HGN" (Horizontal Gaze Nystagmus) test. This is the "follow the pen with your eyes" test. The police are not just looking to see if you can keep your head still! They are looking to see if your eyes follow the pen smoothly, or whether your eyes jerk as they slowly move from side to side. Nystagmus is a fancy word for eye jerking. As soon as the officer requests you to do this test, it should immediately click in your mind: They are trying to gather evidence to arrest me for DWI! At that point you should immediately implement your DWI survival strategy.


RULE THREE: Learn this statement and use it: “Look officer, I KNOW that I’m not intoxicated, but I think your tests are designed to make people look drunk. Which of your tests am I REQUIRED to do?”


This statement is PURE GOLD! Rule number three does three things that will help you beat your DWI 1) Without you having to testify at your trial, the jury will hear you say the words “I know I’m not intoxicated.” That’s never going to hurt you, and the jury might take your word for it! You could possibly win your case with that one simple statement! 2) It gives a reasonable explanation as to why you prefer not to take their sobriety tests. You don’t think they are fair. 3) It asks the police to advise you which tests you are required to take. When they respond you are not required to take any of them, they have just given you permission not to take them, and the jury gets to see and hear it! And THAT, my friends, is extremely powerful in a jury trial!


If the officer insists you perform sobriety tests (I've never seen this before, but I guess anything is possible), just inform them that a DWI lawyer once told you never to take any sobriety tests – period, no matter what – even if you’ve had nothing to drink. That’s solid advice whether you are drunk, or not. Never make the mistake of saying “I couldn’t do that sober!” Think about how that would sound to a jury! And believe me, anything harmful you say to the police during the investigation will be told or played on a recorded DVD to the jury!


If you refuse to take sobriety tests, the officer might arrest you, but he also might not. He might instead just insist that you call an Uber or contact a friend to come pick you up. I've seen both. Either way, it's a lot better than being arrested for DWI and providing the police with a lot of incriminating evidence to be used against you in court.


The last part of my basic DWI advice is to always assume that you are going to be arrested for DWI every time you drink and get behind the wheel. That should force you to evaluate and weigh the risks of driving every time (which is a good thing, right?), and to briefly review your personal DWI survival plan: Is there a better choice for me to make tonight? If I get stopped on the way home, am I going to take the sobriety tests? Which tests will I agree to? Which ones will I refuse? What statements am I going to make? What’s my story? How many drinks am I going to admit to? Have it all worked out in your mind before you start your car.


Decide what your story is going to be before you get into the car, and stick to it no matter how many times or how many different officers ask you. For example: “I had three Coors Lights between 9 pm and 11 pm.” Your statement should never change just because an officer says “Now tell me the truth…I know you’ve had more than two drinks.” Possibly 70% of the people arrested for DWI initially say that they had two drinks. When asked again, they often change their story and say 4 or 5. When asked again, often times it’s six or seven. What do you think that will sound like to a jury deciding your case? Pick a story and stick to it!


WHAT IF I’VE CRASHED MY CAR? 


If you have crashed your car and are concerned that you may be intoxicated, Texas law first requires you to stop and render aid to anyone who may have been injured in the accident. If someone is injured, you are morally and legally required to remain at the scene and do what you can to assist the injured person until medical professionals arrive or until the injured party informs you that he or she does not need your assistance. If a person tells you that they are OK and do not need medical assistance, try to record that statement on your cell phone, and then leave the scene of the accident as soon as possible “to go get help.” Along those lines, you should also probably take a basic first aid class at some point in case the need for you to be a hero ever arises.


If there are no injuries, you are required to leave your ID on anything that you have damaged, including poles, trees, signs, fences, and vehicles, but you are not required to stick around and volunteer to get yourself arrested. Your insurance company will be required to pay for any damage that you have caused, but that’s why you pay them. Consider leaving your DL or insurance card on the dash of your car or wedged on the inside of your driver’s side window, lock the car, and leave the scene as quickly as possible. In leaving your ID, you should be avoiding any criminal charges of “Failure to Leave ID.” Perhaps call Uber as soon as you begin walking away from the accident, and instruct them to meet you two or three blocks from the scene, like at a local 7-11 or on a nearby corner.


If the police see you leaving the area and tell you to stop, you are under legal duty to do so. Otherwise, find the first safe place to stop and call a friend or an Uber. Wherever you end up, do not answer the door or take any phone calls until the next morning. You may wish to stay at a hotel or a friend’s house that night, if possible. The police will probably try to find you as soon as they determine your identity. They will ask you to step outside so that they can “talk to you.” Bullshit! They are going to investigate and arrest you for DWI. Once you get inside a residence, do not step back outside that night to talk to the police or you are very likely to be arrested. That happens to people all of the time – even people who have made it to their own homes! “Nothing in the law prevents a police officer from knocking politely on a closed door. Further, nothing in the law requires any citizen to respond to a knock on his door, or to open it.” Rodriguez v. State, 653 SW 2d 305, Texas Court of Criminal Appeals, 1983. 


Abandoning your car after an accident is not the normal reaction for most people, but it’s a pretty smart reaction in most cases. Think about it this way: If you abandon your car at the scene of an accident, the worst that could happen is that your car could be stolen, towed, or struck by another vehicle. Insurance will cover all of that, and whichever one of those events happens you probably won’t be out more than a $1,000 deductible, and you won’t be facing any criminal charges. If you stay with your car, which is what most people do, you face the exact same possibilities, PLUS you may get arrested for DWI. Why compound your misery? There is no way you can get out of a DWI charge for under $5,000, and it could easily cost you in excess of $15,000. And your auto insurance won’t cover any of that.


Yes, it will “look bad” if you abandon your vehicle at 2:00 am and leave the scene of an accident. But looking bad can’t get you arrested. If you first stop and render aid, then leave your ID, under Texas law, no criminal charges should be filed.


OK. That is the end of my basic DWI advice. If you only learn this much, you will be a “B+” DWI student, and do better than 80% of the people stopped for DWI. If you want to become an “A+” DWI student, and do better than 95% of the people stopped for DWI, here is…


PART TWO – MY ADVANCED DWI DEFENSE STRATEGIES  

Ok. Congratulations! If you’ve read this far, you know the basic DWI survival strategy: Politely refuse to take any tests. Don’t answer any questions. Tell them that you know that you aren’t intoxicated, but you think that the tests are designed to make people look drunk. That may be enough for you to avoid arrest 20% of the time, and provide your lawyer with decent ammunition to defend you at your trial. But there are some unique circumstances where you should perform certain sobriety tests. If you’d like to increase your odds of avoiding arrest or beating your DWI case in court, keep reading!


Once again, the first step in protecting yourself against a DWI is acknowledging that it might happen to you. I bet I have heard over a thousand people tell me that they never thought a DWI would happen to them. Like most things in life, preparation is the key. You need to have a plan! If you wait until you are arrested, it’s too late! You will be at the mercy of the police and your dumb luck. The police have a detailed, step-by-step approach to their DWI investigations and arrests. If you want to stay ahead of their game, you should have a detailed step-by-step plan to defend yourself as well!


If you have consumed an alcoholic beverage and you are later driving your vehicle, you should assume that any police officer stopping you will test you for DWI. There are several warning signs that the sobriety tests (and possibly a DWI arrest) are forthcoming, the most common of which is: “Have you had anything to drink tonight?” or “How much have you had to drink tonight?” or “Please step out of the vehicle. I’m going to check to make sure that you’re OK to drive.”


If you get the dreaded: “I’m going to check to make sure that you are OK to drive,” consider stating: “Of course I’m OK to drive. Is it your opinion that I’m not?”


Police officers follow standard procedures for the most part, and they are trained to withhold their opinions as to a driver’s intoxication until after the sobriety tests have been given. Prior to the sobriety tests being administered, the officer may have a suspicion that you are intoxicated, but not enough information for a fully developed opinion. In the legal business, there is a huge difference between a suspicion and an opinion. If you can get the officer to admit on video that he hasn’t formed his opinion yet (before any sobriety tests), the officer may conclude that he or she doesn’t have probable cause to arrest you!


Police officers know that all sobriety testing is voluntary on the part of the suspect, but they generally won’t provide that information to you – often times you almost have to force them to admit that. Remember that the police are probably audio and video recording you throughout the entire encounter. It's always a good idea to state clearly (for the video, and the jurors who may someday be watching it): "Look, officer - I know I'm not intoxicated." (Once or twice is about right. More than twice might look like you are ranting and /or acting, and either is counter-productive.) A particularly good time to make that statement is right before refusing to do any of the sobriety tests. You may wish to state:


“Look, Officer, I know I’m not intoxicated, but I just don’t trust your tests. I think they’re designed to make people look drunk.” That statement isn’t going to convince the officer, but it’s not designed to. That statement, captured on video and replayed during your trial can be extremely effective with the judge or jury (and of course, all cases go to trial unless some other disposition is reached). You may be able to convince the jury of your innocence just by using this one simple tactic! No juror would suspect that you actually had the foresight to plan ahead for a DWI arrest! Very few people will ever take the time to do that. And that’s one reason why you’ll probably win your case, if you are ever arrested! Because you’ve done your homework, and pre-planned your response! (I may be able to help you a little bit, too…)


Some people believe that police officers will always arrest anyone who refuses to take the sobriety tests. That’s not necessarily true! Basic human nature comes into play: Police officers understand the dynamics of DWI cases. It’s very hard to know if someone is intoxicated unless they are extremely and obviously intoxicated, or they perform DWI sobriety tests. Officers don’t want to arrest someone for DWI on a mere hunch, and later be proven wrong by a blood test. No officer wants the embarrassment of arresting an innocent person. Under those circumstances, sometimes the best way for a police officer to avoid being embarrassed by making a wrong arrest decision is to simply avoid arresting you! So sometimes the officer will just insist that you call a cab, or call a sober person to come pick you up! I have seen that several times! You can’t get out of a DWI arrest for less than $5,000 even if everything breaks your way. If the officer will let you do so, it would be MUCH cheaper to call Uber and if necessary, a tow truck for your vehicle.


If you are really gung-ho about preparing for a DWI arrest, you may wish to learn and practice some of the sobriety tests. Remember - you never have to perform any sobriety tests, but you may choose to do some of them if you think that it will work in your favor. For example, you could offer to recite the alphabet for the officer, or to count backwards. This strategy can be effective, but it is somewhat of a risky maneuver. If you perform the test well, you may convince the jury of your sobriety and end up winning your case. But if you screw it up, you may end up losing your case because of it! As a practical matter, it is more effective with a jury if you perform just one or two sobriety tests and do those tests flawlessly, rather than refuse to take any tests. But if you are only going to do one or two tests, you’d better nail them! And to nail them, you’d better practice! You certainly will be judged very critically on any test that you perform!


Stay in control! If the officers ask you to recite the partial alphabet from the letter “D” through the letter “T” (as is fairly typical), think about it before you respond. Do you really want to recite the alphabet that way? Refusing to do it is always an option, or you can simply insist on doing the tests on your own terms.


Remember: The sobriety tests are all voluntary! You don’t have to do them! You may wish to recite the alphabet, but you can insist on reciting it from A to Z, not from D to T. You can even “sing” it if you wish. If that’s the way you learned the alphabet and the way you have always done it, then insist on doing it the way that is most familiar to you! The main point to learn here is this: For every test you are offered, either do it your normal way – so that you can look good while doing it, or don’t do it at all! And don’t let the police trick you into testing your balance by having you stand on one leg, or stand with your feet all of the way together! If you stand that way, you’ll probably have trouble with your balance and the police will blame it on your intoxication.


Be aware that you will likely be video recorded throughout your encounter with the police, so try to look awake, alert, and in control at all times. You are typically being recorded even when you are in the back of the squad car, so during the ride to the jail, keep your mouth shut, keep your eyes open, and sit up straight! Stay awake! You probably never thought you’d ever be arrested. Well, grow up! If you drink and drive, you better be prepared for the possibility. Don’t be a cry baby – be an adult! I’ve defended several crying women, and one crying man - and as I recall I LOST EVERY ONE OF THOSE CASES. Jurors are going to be evaluating you based upon what you say, what you do, and how you look – even in the back of the squad car! So talk and act like a professional. Don’t be bitching at the officer. He’s just doing his job. Don’t be cursing or issuing ridiculous threats. No ranting and raving. No crying. No begging the officer to release you. Just stay quiet and stay in control! Act like you were in church. If you stay in control, you will look normal. Looking normal is the key! If you lose control during the arrest process, you will probably lose your case!


Typically during a DWI investigation, the police will ask you to stand with your feet close together or touching at all times. They do that in an attempt to impair your balance and exaggerate any sway that you might exhibit. I’d recommend that you insist on standing with your feet at least shoulder length apart, or just however it feels most comfortable for you. There is no law that says you have to stand with your feet close together. If the police press you on that, ask them to show you a law that says you have to stand that way. There is no such law and the police know it.


As a side note, you should probably go ahead and stand where the police tell you to stand, typically on an “X,” or in a box, or on some footprints painted on the floor. There is no law that says that you have to do so, but I’ve seen officers go ballistic when people don’t comply. I’m not in favor of getting my friends and clients beaten up by the police. Go ahead and stand where they tell you, just don’t stand with your feet all of the way together, or in some awkward manner that’s designed to make you look drunk.


To the extent possible, you want to stay in control of your DWI arrest situation. The police won’t give you many options, or provide you with much useful information, but it’s always your choice as to whether to answer any questions or take any sobriety tests. It’s should be obvious to you by now, but here is rule number 4 again:


RULE FOUR: Only do and say things that will make you appear SOBER on the video. Don’t say or do anything that might make you appear to be drunk!


Well, DUH! Isn’t Rule Four completely obvious? Maybe to a sober person who has a few minutes to think about it, but that may not be your situation when the police pull you over.


Look, folks: When in doubt, don’t do it. That’s the more conservative approach. 


Try to say as little as possible. “Yes, sir” and “No, sir” are typically the best answers. Those answers are short, polite, and impossible not to understand. When you do speak, speak up and focus on speaking clearly. Mumbled and slurred speech are signs of intoxication. Clear speech tends to indicate sobriety.


REMINDER: If you are finding this information useful, don’t be a DWI information hog! Share this information with your friends! Right NOW is the best time to forward this article – before you get all busy with your life and forget all about it! Be a hero! Save your friends! Friends don’t let friends drive drunk, and good friends don’t let their friends get arrested for DWI! In fact, nothing says I LOVE YOU DUDE to your friends and family more than sending them John Gioffredi’s DWI defense tips!


BREATH AND BLOOD TESTS:


Generally you should never take a breath or blood test, but there are a few exceptions. If you’ve really only had one or two drinks, or maybe even three or four drinks over a four hour period or longer, go ahead and take every test, including breath and / or blood. You can’t be over the legal limit after consuming only two or three standard drinks (unless you weigh under 90 pounds!), and the tests should confirm that.


Most people believe that you will NOT be charged with DWI if you give a sample UNDER the 0.08 BAC limit. Those people are WRONG! You can be charged with DWI at 0.07 BAC, 0.04 BAC, and even 0.00 BAC! If you’ve been arrested and the breath result is 0.00 BAC, they can use that result against you, and claim that your intoxication must be because of drugs! There is no score that you can blow on a breath test that insures that you won’t be arrested for DWI! 


If you are going to refuse the breath and / or blood test, as I generally suggest, here are some creative ways to do it. Simply stating “I refuse” or “No” is OK, but that’s what the “C” DWI students do. If you simply say “No,” a juror might conclude that you are being uncooperative and hiding evidence, and equate that with guilt. There are several much better ways to refuse:


Tell the police: “Sure! I’ll be happy to provide a breath sample! But when (not if) my alcohol level is under the legal limit, will I be free to go?” (Remember: You probably won’t be allowed to go free no matter what you score, even if it’s 0.00 BAC! See above!) The police aren’t allowed to answer that specific question – it’s considered legal advice! They will probably refuse to answer, or they’ll simply tell you “No.” If the police refuse to answer, don’t let them off of the hook easy! Ask them again, and insist on a direct answer to the question. “So will I be set free when I pass the breath test, or not?” No matter how the police answer this question, it will help your defense. If they won’t answer that question, you say, “If you won’t answer that question, why should I take your test?” It shows the jury that there isn’t a good reason to ever take their tests, even if you are under the legal limit! (This would be my preferred strategy).


Ask the police if they will save your breath sample for an independent analysis later (it is possible to save breath samples, but I’ve never seen an officer do it). “I’ll give you a breath sample as long as I can get an independent expert to retest that same breath sample later.” That request should seem very reasonable to a juror, but the police will never agree to those terms. You’ll come off looking reasonable and logical, and the police will look unreasonable and unfair. (BTW – This “preserve the breath sample” strategy doesn’t work with blood tests. The police generally DO save blood specimens for subsequent testing.) 


I don’t necessarily recommend this next tactic, but it is sure is fun to watch when it happens: If you feel like being a little more confrontational, agree to provide a breath test, if requested. Then provide the police with exactly one breath sample, but not the second. The intoxilyzers used throughout Texas require TWO breath samples to produce a valid test result. Those two samples are compared to each other, and if they don’t agree within 0.02 BAC, the results are invalidated, and they will have you blow again. But the written information that they provide to you (the “Texas DWI Statutory Warnings”) only specify that you provide ONE (“a”) breath sample. Provide the first breath sample, and then simply refuse to provide the second one. Tell the police that you have provided them “a” specimen exactly as required on the written form they handed to you. There’s nothing on that form stating that you have to provide a second sample! (I’ve seen this done once, and it worked like a charm! It confused the hell out of the police, who couldn’t decide what to do, but it seemed more than fair to the jurors, who voted not guilty!)


Agree to provide a breath sample, but blow “around” the mouthpiece, and not directly into it. I’ve seen this several times. It seems to be the default option for people who say that they’ll take the breath test, but they really don’t want to. Sometimes it will get you a not guilty verdict, and sometimes it won’t. Most police officers have seen this trick before, and they’ll testify that you were faking it, and that you weren’t blowing directly into the mouthpiece. But the jurors don’t know that, and they can’t tell for sure just by watching the video. Try it again and puff your cheeks out and blow real hard, just not into the mouthpiece. Juries don’t know how intoxilyzers work, and they can’t tell if you are faking it or not, but they can hear you blowing and see your cheeks puff out on a video (I don’t necessarily recommend this approach, but I have seen it work.)


Would you really like to make a police officer squirm? Hand held portable breath tests (PBTs) are sometimes used at the scene of the stop. PBTs report a numerical alcohol concentration, but the numerical result is not admissible in court - for any reason. The PBTs are not considered accurate enough for court room testimony. If you are ever offered a portable breath test, ask the police this question: “Are the results admissible in court?” They’ll answer “No.” Then ask: “Will you let me go if I am under the legal limit?” The answer is probably no, but I doubt a cop would ever say that on a video. He’ll probably just try to quickly change the subject, but be firm. “Officer, please answer my question – will you let me go if I am under the legal limit?” If the officer finally answers you, follow up with this question: “So if I blow into your device, and I am under the legal limit, you might arrest me anyway and the jury will never get to know the results? Are you kidding me? That’s ridiculous! You’d have to be drunk to take that test! No, thank you, sir!”


The only admissible breath test in Texas is done at the jail, on a machine called an Intoxilyzer 5000 or an Intoxilyzer 9000. Both machines are about the size of a suitcase. On intoxilyzer tests, the longer you blow, the higher the results. All of the experts agree on that. Some experts testify that the harder you blow, the higher the results. And all of the experts agree: Two people with the exact same BLOOD alcohol concentration can blow significantly different BREATH test results. And all of the experts agree that even the best intoxilyzer or blood test ever made can’t show what the suspect's alcohol concentration was at the time the suspect was actually operating the motor vehicle. They can only show your alcohol concentration when you were being tested – either at the jail or at the hospital.


LICENSE SUSPENSION CONSEQUENCES:

Various drivers’ license suspension consequences are involved in a DWI arrest. Ignore them! For the most part, the license suspension consequences are COMPLETELY insignificant compared to what a DWI conviction can do to you. You will not be without the ability to drive even if your license is suspended. For almost any DWI, an occupational driver's license (ODL) can easily and quickly be obtained. Driver license suspensions are a hassle, but they are always very temporary. DWI convictions are like diamonds – they last forever!


DETAILS REGARDING DWI SOBRIETY TESTS: 

There are three standardized field sobriety tests (SFSTs) which are used in almost every DWI investigation in every jurisdiction in the USA:


1. HGN (Horizontal Gaze Nystagmus): 

The police have you follow a pen or a light back and forth with your eyes, holding your head still, to see if your eyes follow smoothly (a sign of sobriety) or if they jerk repeatedly (supposedly a sign of intoxication). I advise that, before doing this test, you ask the police, “What exactly are you looking for in my eyes?” They should tell you “Jerking movements, or the lack thereof.” Then you should state: “Can’t head injuries cause those same jerking movements, and some medications?” Yes, they can. “Well, then, I’ve had head injuries before, and I’ve taken medications in the past, so I’m not going to do that test.”


The Three (Supposed) Indicators of Intoxication on HGN: Eyeballs jerking as the pen is slowly moved horizontally across the person’s face Eyeballs jerking prior to a 45 degree angle when the pen is moved very slowly Eyeballs jerking distinctly for over four seconds when the pen is held out to the extreme left and right.


There is plenty of scientific literature establishing that eyeballs jerk like this when enough alcohol is present. However, in my opinion HGN shouldn’t be used as a sobriety test because the eyes in some people jerk at alcohol concentration levels much lower than the legal limit. There are 6 possible “clues” that the police look for in HGN testing. Their training says that 4 or more clues indicate intoxication. But one study (the horizontal gaze nystagmus “Robustness” Study published in September of 2007 by the National Highway Traffic Safety Administration) shows that some people show all 6 clues at alcohol levels less than 0.03! (The legal BAC limit is 0.08, and the NHTSA HGN robustness study shows one person having 4 HGN clues at 0.016 BAC!) This government study clearly shows that HGN does not prove intoxication, but the police will testify that it does!


2. The WAT (Walk And Turn): 

You may have heard this test being called "walking a straight line." In the DWI industry, it's referred to as the walk and turn, or the “WAT”. The instructions and grading of this test are extremely specific. You may want to practice this test a few times: The police ask you to stand on a line with the heel of your right shoe touching the toe of your left shoe. You are asked to place your arms straight down to your sides (as if they were against the seam of your pants) and maintain that terribly awkward position for about 90 seconds and not move until they tell you to begin. You are then instructed to take 9 steps out and 9 steps back, counting each step out loud, looking at your feet, keeping your arms to your sides, touching the heel of your front foot to the toe of your back foot on each step, and turning in a very specific unnatural way*. Then they ask if you understand the instructions. If you answer yes, they tell you to begin. If you say no, they’ll repeat the instructions. You must follow the instructions EXACTLY or you will be considered intoxicated. There are eight possible clues, or indicators of intoxication, that the police look for during the walk and turn:


Starting before being told to do so (before all of the instructions are given)

Failing to maintain the starting position until told to begin (more specifically, moving your feet apart at some point to maintain your balance)

Using your arms for balance while walking

Stepping off of the line while walking

Stopping during the walking portion of the test

An improper turn (the turn instructions are ridiculously specific: On your 9th step, you are told to leave your front foot on the ground and pivot 180 degrees to the left by taking a series of small steps with your other foot. I’ve never seen anyone turn like this in real life. It’s a totally unnatural maneuver.)

Failing to touch heel to toe

Taking the wrong number of steps 


I wouldn’t at all recommend taking the Walk and Turn test unless you have first practiced it dozens of times. Even then, I’d only perform the walking part, not the starting position part. You’d be a fool to do this for the first time in front of a police camera at 2:00 am under the threat of an arrest! If you absolutely MUST do this test, ignore the “starting position” rules and just stand normally during the instructions, then walk normally, not heel to toe. Remember: To the jury, it’s not how well you follow the instructions – it’s whether you look drunk. Standing normally looks, well…normal. Walking normally looks normal. Walking heel to toe, and especially standing heel to toe is not normal, and it is generally going to make you look drunk!


3. The OLS (One Leg Stand):  

The police ask you to stand on either leg with your other leg straight, and out in front of you, with your foot six inches off of the ground, with your toe pointed and your foot parallel to the ground. Your arms are to be held straight down to your sides (as if against the seam of your pants), as you count to 30 by stating "one-thousand one, one-thousand two, one-thousand three, etc."


The Four Supposed Indicators of Intoxication:


Raising your Arms for Balance, Hopping, Putting your Foot Down, Swaying  


I would never submit to this test – drunk or sober. It’s just too darned difficult. Before you ever agree to it, you’d better practice it - a lot.


And a final note: Do you really want to be trying to do any sobriety test - for the first time ever, on the street, at 2:00 am, under the pressure of going to jail? After reading this, if you are even considering performing sobriety tests - ever, for Pete’s sake PRACTICE them ahead of time!


OTHER COMMONLY USED SOBRIETY TESTS   

Some police will ask the DWI suspect to perform additional sobriety tests. Although the following tests are not “standardized,” they are still commonly used:


Reciting the alphabet. You'd be surprised at how many people have difficulty reciting the alphabet. To make it more difficult, the police often ask the suspect to start and end at a designated place somewhere in the middle, often asking you to start at the letter C or D, and ending with the letter S or T. Unless you have practiced reciting the alphabet lately, I’d advise not doing it as a sobriety test. But better yet, practice doing it until you are positive that can do it right. If you decide to recite the alphabet, insist on doing it from A to Z.


Counting backwards, from one nondescript number to another, typically from 38 to 22. The hardest part of this test seems to be remembering exactly where to stop. If you haven’t practiced doing this recently, I wouldn’t recommend trying it for the first time during a DWI investigation!


The finger count: The police have the suspect touch his thumb to each of his fingers, three times quickly, counting each of his fingers as he touches it, one to four, and then backwards from four to one. So, thumb to pinky finger is “one,” thumb to ring finger is “two,”, thumb to middle finger is “three,” then thumb to index finger is “four.” Then do it backwards: Thumb to index finger is “four,” thumb to middle finger is “three,” thumb to ring finger is “two,” and thumb to pinkie finger is “one.” If you do that sequence properly three straight times, you “pass” that test. Unless you have practiced it several times, I wouldn’t recommend it. This test is more difficult than one would think.


The modified Rhomberg stationary balance test: The police have the suspect close his eyes, tilt his head back, and put his arms straight down to his sides. Then the defendant is asked to estimate when 30 seconds is up. I wouldn't recommend you doing this test under any circumstances. Almost everyone sways badly while doing this and it almost always makes people look drunk. You can reasonably estimate 30 seconds by counting “one-thousand one, one-thousand two, one-thousand three,” etc. in your head, but again, unless you are willing to practice ahead of time, don’t do it! If you are hard-headed (or stupid) and simply MUST try your luck with this terribly unfair test, insist on doing it with your eyes open. It’s cheating, but you’ll look 10 times better on the video. And remember: It’s not so much how well you follow the instructions - it’s how you look when you are doing the test!


The portable breath test (PBT): Police officers often use a PBT to see what your alcohol concentration is. They will tell you that the results are not admissible in court, which is mostly true. The alcohol concentration number is NOT admissible, but they can say that the PBT “confirmed the existence of alcohol.” If you are ever offered a PBT by a police officer, I’d advise that you ask the following: “If my alcohol concentration (or level) is below the legal limit, will that be admissible?” The officer will say “No.” “Well, then, if my level is below the legal limit, does that mean that you won’t arrest me and I’ll be free to leave?” “Um. No.” “Um…then only a drunk or an idiot would take that test, don’t you think?”


BLOOD TESTS  

More and more jurisdictions are taking blood tests whenever a person refuses to provide a breath test. While it is certainly possible to beat a blood test case, it is more difficult, and some additional steps are recommended.


Before you are arrested, you can tell the police whatever story you want. Some people deny consuming any alcohol. Many people tell them that they only had two drinks. Either story might keep you from being arrested. But whatever you first tell them, stick to that answer no matter how many times they ask you the question! Believe it or not, most intoxicated people admit to consuming more and more drinks every time they are asked! And the police will probably ask you at least three times during their investigation! They know that you are likely to admit more drinks every time they ask! But stay firm in your answer – at least until it is obvious that the police have obtained a warrant and are going to take your blood. These next steps are extremely important in a blood test case! Once you are taken to a hospital, or to a person at the jail who is obviously there to take your blood, you should say the following:


RULE FIVE: If the police tell you that they have a warrant to take your blood, immediately tell them some version of this: “Man, that’s not fair! I wasn’t drunk when you stopped me, but I had about three shots right before I left the bar. I would have been home before those last three drinks hit me, but now by the time you take my blood, that alcohol will show up!” 


Step 1: Say “I had two or three drinks right before you stopped me.” After a night of drinking, most people will lie and say that their last drink was “a couple of hours ago” because they think that “sounds” better. WRONG! In reality, if there is going to be a breath or a blood test, they’d be much better off saying that they just slammed three or four shots in the last five minutes! That would mean that their alcohol level would be rising dramatically the entire time between the stop of their vehicle and the blood test. Three drinks in the five minutes right before being stopped would give a 180 pound male a 0.06 “margin of error.” A 0.12 BAC at the time of the blood test would have been a 0.06 at the time the defendant was driving! The last 0.06 would have been absorbed while the person was in custody! Three drinks in five minutes would give a 90 pound female a 0.12 margin of error!


Step 2: “I finished a full meal right before my drinks.” You should always state that you had a large meal (nachos? a burger? steak and potatoes?) 30 minutes before your arrest, and that your drinking was done during and after your meal. It typically takes 15 to 20 minutes for an alcoholic beverage to be fully absorbed on an empty stomach. But it can take up to two hours for alcohol to be fully absorbed on a full stomach. That means every drink consumed in the previous two hours is still being absorbed. A beer consumed at 10:30 on a full stomach wouldn’t be fully absorbed at midnight! A full stomach and recent consumption of drinks creates the perfect rising alcohol level defense. The prosecutors might be able to prove your BAC at the time of the test by offering the results of a blood or breath test into evidence, but they probably won’t be able to prove your BAC at the critical time – at the time of your driving.


When the police first stop and ask you about how much you have had to drink, you can tell them whatever story you want. Most people admit to having “two beers.” But if the police get a blood warrant, change your story and say, “I need to be honest with you, officer. I actually had two (or three) drinks (shots) right before you pulled me over. But I was drinking on a full stomach, and I was sure that I’d be home well before it hit me.”


That statement provides you with the perfect “rising alcohol” defense. Depending upon your weight and how much food you have recently consumed, your alcohol level could rise anywhere from 0.04 to 0.12, or even more, while three drinks were being absorbed into your blood stream. If you had three shots in the 5 minutes just prior to being pulled over, there is generally no way the government can prove that you were over the 0.08 limit at the time you were driving. For example, if you just slammed three shots of tequila, your alcohol level might be 0.04 when the police stopped you, but it could have increased to 0.16 by the time you were breath or blood tested.


By the way, in case you were wondering, it is not illegal to lie to the police (except for providing them with false identification) during a DWI investigation. It is illegal to lie on the witness stand, when you are under oath. If you lie on the witness stand, that’s a serious crime called perjury. If you lie on a DWI video, that’s called acting! Huzzah! And good actors often get not guilty verdicts! 


Here is one other tactic for blood warrant situations: Ask the police: “If I refuse a breath test, will you stick a needle into my arm against my will and take my blood? If so, then I’ll take the breath test - but ONLY because I don’t want anyone sticking a needle in my arm. Please do not stick a needle in me! I will freak out - I am terrified of needles!” 


If you get that statement recorded on video, the breath test results might be thrown out because you provided the samples while under duress. It may or may not work, depending on the judge, but it’s certainly worth a shot!

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