Many people often ask me, “If I am stopped by an officer and suspected of drunk driving, what are my rights?” This is a very good question because under Texas Law a police officer DOES NOT have to tell you about your rights when questioning you about drunk driving. Additionally, Texas law does not require an officer to allow you to speak to an attorney while he or she is investigating a DWI.
So, If you are stopped by an officer and he or she begins questioning you about drinking, i.e., “have you been drinking?”, then we recommend that you know and follow the following 7 points about your rights at the time you are stopped.
- Texas law requires you to produce a driver’s license and current insurance card to the officer.
- You are allowed to tell the officer that you have committed no crime and request that your license and insurance be returned to you so that you may leave.
- If the officer says you are NOT allowed to leave: Tell him/her that you invoke your right to remain silent and will not answer any question concerning drinking and driving and that you WILL NOT CONSENT to ANY sobriety testing
- You have a right to REFUSE ANY Request for a Breath or Blood test
- You DO NOT have to Consent to a search of your vehicle
- You DO NOT have to answer any questions or Sign ANY paperwork
- You have a right to immediately request an attorney.
These 7 points are not intended to help citizens avoid drunk driving convictions. They are intended only to make the public aware of the rights a person has if questioned for drunk driving.
A failed breath test DOES NOT matter unless the State can prove you were over the limit at the TIME OF DRIVING!
In most DWI breath test cases, the State will attempt to convince the jury to find a person guilty based on a failed breath test. In every one of these cases, the State will use a breath test that was given some time after the arrest was made.
It is important to remember that officers DO NOT HAVE scientifically valid breath test machines in their vehicles when they make an arrest for DWI. Instead, the officer must transport the citizen accused of DWI to what is known as the “intoxilyzer room” which is usually located in a city or county jail. The length of time between an arrest on the side of the road and a breath test score that is given in an intoxilyzer room is an important factor in EVERY DWI breath test prosecution.
The law requires that the state must prove a person was intoxicated AT THE TIME OF DRIVING, not 30 minutes, one hour or in many cases even longer when he or she gives a breath test at a jail facility. In order to relate a failed breath test back to the time of driving, a State’s expert must use what is known as Retrograde Extrapolation.
Retrograde Extrapolation is the scientific process used to take the score of a breath test and then back it up in time to show what a person’s BAC was when they were driving. However, in order to properly calculate using retrograde extrapolation the State’s expert needs to know the following information:
- The person’s gender;
- Their weight;
- The time they had their first drink;
- The time they had their last drink;
- The time of the stop (arrest);
- The type of alcoholic beverage consumed;
- The type of food a person ate and when they last ate;
- The time the breath test was given;
- The result of the breath test.
Often time, the state does not have all of the information for their expert to properly retrograde a breath test result to the time of driving. In these cases, a successful argument can be made by the defense attorney that the State did not satisfy its burden of proving that the citizen accused was intoxicated at the time they were operating a motor vehicle, and therefore, they should be found NOT GUILTY of driving while intoxicated.
It is important to do a thorough review of the police report and video of a DWI investigation to determine if the State will have problems with retrograde extrapolation in a DWI breath test case. This is one of the most successful defensive arguments and can, in some cases, lead to a not guilty verdict.
DWI: What Does the State Have to Prove?
Before the State can convict a citizen of the offense of Driving While Intoxicated, the prosecution must prove the following elements beyond a reasonable doubt:
The State MUST prove that:
- The Defendant;
- Operated a Motor Vehicle;
- In a Public Place;
- In the Texas County where the Defendant is charged;
- While the Defendant was Intoxicated.
In Texas, the term “Intoxicated” means either:
- The defendant lost the normal use of his/her mental OR physical faculties due to the introduction of alcohol, a drug, a dangerous drug, a controlled substance or any other substance into hi or her body; OR
- Had a blood or breath alcohol concentration over the legal limit of 0.08.