That is a question I get an awful lot.
The answer is, it depends.
The reason I say that is, it really depends on the circumstances under which you get pulled over and what was happening before.
My first piece of advice to anyone who gets pulled over is to be respectful, polite, and answer the questions that the officers are asking you.
Officers are always going to appreciate someone that is polite, respectful, that feels that they feel is being compliant because, as we all know, being a police officer can be a dangerous job and if you are resistant or you are non compliant in anyway it certainly pushes you into in an area where this interaction is not going to go so well for you.
So that is my first piece of advice.
When you get pulled over, just be polite, be respectful and cooperate as much as you can.
I think people’s natural inclination is to be cooperative and just do what the police officer is asking you to do.
I think we are all brought up in that way, if a police officer stops you and asks you some questions you better do what it is that he is asking you to do or else you are going to get in trouble.
To a certain extent that is true, but there is a point when you start to put yourself in a position where you are making it more likely you are going to get arrested or if you end up getting arrested.
Regardless, you are making it more difficult on your defense attorney later down the road to get to a favorable result in your case.
Specifically when it comes to the breath test, if you know you are going to be below the legal limit then blow.
If you get to the point where he is asking you for a breath test then ninety-nine times out of a hundred you are going to be arrested.
So whether you say yes or no, it is not going to change the outcome right then and there.
So if you know that you are going to be arrested, and you typically are at that point, but you have a strong belief that you are going to come in below the legal limit based on the amount of alcohol you have had, then you really should probably go ahead and take the breath test.
Because if you pass it you are probably going to get let go.
It is not always that way but there is a much better chance.
Now I think most people who find themselves in this situation are not going to have that level of confidence.
They are not going to know if they are below the legal limit or not.
Most of us do not know what our limit is or the actual legal limit.
We don’t know how many beers, glasses of wine, or mixed drinks it’s gonna take us to get to .08 and there is a lot of different factors that play into that.
Things like how quickly you drank them, what your body weight is, what you had for dinner and the last time you ate.
So if you are in that gray area, which most people will find themselves, my advice to you is not to provide the breath test because you are giving them a piece of evidence that they can use against you.
Just about every time they are going to be able to use that piece of evidence in court because you are consenting to it.
When you refuse the breath test you put the officer in a position where he is going to have to go seek a warrant from a judge to draw your blood.
They almost always will, but if they do that, that puts a few more hurdles in their way they have to get over.
So for the typical person I am going to recommend that you do not comply and give a breath test because we want to have as many hurdles in the way later on down the line when we are defending your case because it is going to give us more opportunities to try and get favorable results for you.
If you refused the breath test and they get a warrant where do they draw the blood?
Is it roadside or at the police station?
It depends on the jurisdiction.
A large jurisdiction like Harris County will have a station set up by the local law enforcement.
They will have one at the jail or they will have one at a processing station with nurses that are on duty.
They can bring the suspects into the station, get the warrant drafted via fax or email and have it sent back and forth between the judge and the police officers in the DA’s office.
They’ll be able to draw your blood right there on site so it’s something that can happen as quick as thirty minutes to an hour after your rest.
In a small jurisdiction they may have to take you to a hospital and they may have to be doing some driving back and forth to get the warrant signed.
So the delay in getting a blood draw can also be of benefit because it could take three or four hours to get the blood draw and that is time that your body has to process the alcohol and it more often can result in a lower blood alcohol concentration.
It gets a little complicated at that point as far as being able to extrapolate and all those sorts of things but you’re always better off having a lower BAC then a higher BAC.
Okay, so let us say you took the breath test and was arrested.
What are the chances of getting a first DWI dismissed?
I know I sound like a broken record here but it just depends.
We have a lot of success in finding mistakes along the way within the investigation, the probable cause for the stop, the way they administered the field sobriety tests, the questions they asked, when was the decision was made to arrest, did they follow the proper protocol and things like that.
Police officers are just like you and me: they are going to make mistakes in their job and they are typically going to make a mistake or two in every single arrest and detention.
Did they make some crucial mistakes?
The question for each case becomes how many of those mistakes did they make it and did they go to the crucial elements of the investigation, detention and arrest.
For instance, one of the most common mistakes that we find is that they jumped the gun and pulled you over for something that did not actually happen, like you were weaving within your lane.
If we can determine later by watching their videos from their squad car that you technically did not break the law and weave within your lane or fail to maintain a single lane, then the rest of the evidence in the case is likely to be thrown out.
So, if we can find an error there or a mistake that is to our advantage, then that is one possible Avenue to get your case dismissed and there are many others throughout the process.
Like I was saying earlier, if you force them to go get a warrant and they make a mistake in drafting the warrant or executing the warrant, then perhaps the blood results become inadmissible and all the sudden the state has a weaker case.
It is going to take many of those things together to convince the district attorney’s office that they do not have a good case anymore and they need to dismiss it.
It is obviously difficult to do but we find that we are successful in getting a lot more cases dismissed because we are experienced with all these sorts of issues that can come into play in a DWI arrest and prosecution.
Many of us have former experience being prosecutors on the other side.
You were previously a Harris County prosecutor, right?
So you have been on both sides of cases like this.
Another question that gets brought up is about the evidence and building the evidence.
The police video all these arrests, right?
How do they video the arrest?
Most big agencies like Harris, County, the Houston sheriff’s office and the Houston police department are going to have a variety of different cameras that are going to be provided to the defense attorneys in a DWI arrest.
They are going to come from the squad car with a dash camera that’s going to show the suspect’s vehicle before the arrest and before the traffic stop.
Then sometimes it will show an angle of the interaction with the police officer.
They are going to be equipped with a what we call body worn cameras.
Those are cameras that are attached to their uniform on their chest, and it is going to record interactions with suspects and witnesses in every investigation that can lead to a criminal charge.
So sometimes we get up to five, six or seven different angles of the arrest from multiple police officers who were on the scene.
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