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  • Writer's pictureBrian Foley

Montgomery County Criminal Defense Attorney - DWI - When can you refuse to do the tests?

Montgomery County Criminal Defense Attorney - DWI - Brian Foley - Board Certified in Criminal Law.

I get asked a lot about DWI cases. Probably because they are so common. One of the most commonly filed criminal charges is DWI. This is because you don't have to be a criminal to be arrested for this offense. If you have alcohol on your breath and are uncoordinated you may fail the field sobriety tests when asked to perform them by a police officer. If this happens you are going to be placed under arrest for Driving While Intoxicated. This actually always happens prior to the police obtaining a sample of your breath or blood that will be admissible in court. That's right, it means that before the officer knows your blood alcohol content you are already under arrest.

In fact the officer can't even request an official sample of your blood until he reads you a form called the DIC-24. The first line of the DIC-24 says that you are under arrest. So when can you refuse to do the tests?

The truth here is that you can refuse to do the filed sobriety tests at any time. The courts have said that an officer may use the refusal to submit to filed sobriety tests in order to suspend your driver's license if arrested and a jury can use it to infer that you are in fact intoxicated. You may be thinking, "How am I supposed to have a 5th amendment right to not be a witness against myself and then have my refusal to submit to field sobriety tests used against me?" Well maybe only defense lawyers think like that. But in any case the State routinely argues that the defendant only refused because he knew he was intoxicated and that he would not pass the field sobriety tests.

Is it a good idea to refuse? Well even though the jury can use the refusal against you, it may be a good idea to refuse. Especially if you have poor coordination and balance. There are three tests that are standardized and performed by officer in every DWI. The HGN or an eye test, the Walk and Turn which is a 9 step walking a straight line test, and the One Leg Stand test which requires you to balance on on foot.

If you have naturally occurring nystagmus (involuntary jerking of the eye) then you should refuse to submit to the HGN. If you have had hip replacement surgery or chronic leg pain, are over 65 years old, or 50 lbs overweight then you should refuse the walk and turn. The same physical disabilities and age and weight requirements apply to the One leg stand.

These tests are so easy to fail that it may be good advice not to submit or participate in them at all. You have to keep in mind that an officer on the street is not used to someone understanding their rights and refusing to submit to testing. This means that you are more likely to be arrested if you are what we call a "total refusal." Refusing to submit to the tests in Montgomery County Texas might penalize you in another way.

For individuals who are above the legal limit of .08 but have no prior criminal history you may be eligible to have the case dismissed after completing a type of probation called pretrial diversion. This option however may be denied to you by the district attorney because of "lack of cooperation."

If you were a total refusal on the field sobriety tests it makes it more difficult for them to prove that you may have been intoxicated due to the loss of the normal use of your mental or physical faculties. When you make their job more difficult they are less likely to use the tool of pretrial diversion.

However if you have previously been arrested for DWI or some other offense, or if you crashed your vehicle into another person you may be denied this opportunity anyway in Montgomery County, Texas.

In that case you may want to refuse if you feel like you would merely be giving the District Attorney more evidence to prove that you were intoxicated. If you have had no alcohol at all, or if you have had only a single small drink of alcohol over more than an hour you may tell the officer that you would be willing to submit to a breath test on the side of the road but that you do not want to participate in the filed sobriety tests. If he refuses to give you a portable breath test to show that you are not intoxicated this could be used later to show that the State cannot prove the case beyond a reasonable doubt.

You may still be arrested as some individuals offer to submit to a breath test because they are intoxicated on some other substance.

So in short, if you refuse you are more likely to be arrested. But you are also much less likely to give the district attorney's office the evidence that they need to convict you in the case.


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