If you have been arrested for Driving While Intoxicated First Offense with a refusal of breath and Blood in Montgomery County, Texas call Board Certified Criminal Defense and DWI lawyer Brian Foley.  ​

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What is a refusal DWI? 

Most people believe that if they are arrested for DWI that the officers will always get a breath or blood test.  While it is true that officers may try to get a warrant to obtain a blood sample they are not required by law to do so.  An officer may try to arrest you and prove that you are guilty of DWI based on the definition of intoxication that allows for proof that the defendant did not have the normal use of their mental and physical faculties by reason of the introduction of alcohol, a drug, or any other substance into their body.  This means that a jury could find someone guilty of DWI even if there is no breath or blood test.

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Don't the officers always get a warrant?

No.  Officers and district attorneys will often decide that they have sufficient evidence even without a breath or blood test.  If the defendant does not have any criminal history and the offense occurred at 3 in the morning on a Tuesday the prosecutor may simply decide that they don't want to wake up the judge on a weekday.  This is terrible news for a client that does not have any alcohol in their system and refused to provide a breath or blood sample based on the advice of some other attorney they knew.  ​

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Refusal v. Total Refusal

A DWI where someone is pulled over for speeding and then the officer does field sobriety tests but does not get a breath or blood test is known by prosecutors and defense attorneys as a "refusal" DWI based on the defendant's decision to exercise their right to refuse a breath or blood test.  ​​

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A "Total Refusal" is when a citizen accused of DWI stands on their rights at the beginning of the traffic stop and refuses to perform even the preliminary field sobriety tests.  SFSTs or standardized field sobriety tests are performed on the side of the road after a DWI traffic stop.

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Standardized Field Sobriety Tests (SFSTs) are a battery of three tests administered and evaluated during a traffic stop in the United States to determine if a driver is impaired by alcohol or drugs. These tests were developed by the National Highway Traffic Safety Administration (NHTSA) to standardize the process of assessing impairment and are widely used by law enforcement agencies across the country. The three standardized tests include:

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1. Horizontal Gaze Nystagmus (HGN): This test involves observing the involuntary jerking of the eyes as they move horizontally. When a person is impaired by alcohol or certain drugs, this jerking becomes more pronounced when the eyes move to the side. The officer will move an object (such as a pen or flashlight) horizontally in front of the person's eyes and look for signs of impairment.

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2. Walk-and-Turn (WAT): In this test, the individual is instructed to take nine heel-to-toe steps along a straight line, turn on one foot, and return in the same manner. The officer observes the person's ability to follow instructions, maintain balance, and walk in a straight line. Deviations from the prescribed procedure or balance issues may indicate impairment.

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3. One-Leg Stand (OLS): During this test, the person is asked to stand with one foot raised approximately six inches off the ground while counting aloud by thousands (one thousand-one, one thousand-two, etc.) until told to stop. The officer observes the person's ability to balance while standing on one leg and whether they put their foot down or sway excessively.

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These tests are designed to assess an individual's coordination, balance, and divided attention, as impairment by alcohol or drugs can affect these abilities.  

 

If you have been arrested for DWI in a total refusal case the District Attorney will have little to no evidence of intoxication other than the driving facts of the case and the fact of the refusal itself.  

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How do you beat a DWI Refusal?

The first step in any DWI defense is to review the evidence provided by the District Attorney's Office.  This evidence will first take the form of reports and documents like the DIC-24 which is the form that officers use to request a sample of the defendant's blood or breath.  Then review of the video from the officers body camera or dash camera is essential.  Especially in a DWI refusal how the person looks on video and what they say to the officer is critical.  For example if someone says, "I couldn't do this sober."  There is an implication that the prosecutor can make about the defendant's own assessment of his level of intoxication.  An innocent slip of the tongue like this for a person who is in fact sober at that time could be evidence used against them in a prosecution.  Typically the best policy when talking to a police officer who is accusing you of wrongdoing is to be silent and invoke your 5th amendment right to do so.   ​

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What is the punishment for a DWI Refusal?

A DWI Refusal is a Class B Misdemeanor and carries a maximum punishment of 180 days in jail and a $2,000 fine. 

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A State Traffic fine could also be issued in the amount of $3,000 for first time DWI offenders.