Your life feels like it’s over. Your horizons suddenly narrow. You begin to wonder if you will ever be the person you were before. The world is not the same. It is awful, and scary and bad. But it is survivable. Our job is to make the amount of awful less, to minimize the consequences. People DO get their DWI cases dismissed. People DO get acquitted in front of Texas DWI juries. There is hope. But the key is that someone needs to look at you as an individual, at your case as an independent set of facts, what follows below are some tips (it might be too late if you were already arrested) so that you can know what to do if there is a next time. Also, they will help you evaluate what issues might exist regarding your own situation. But also, someone needs to let you know that being arrested for a DWI puts people, lots and lots of people, in an inherently unfair situation. They are dealing with situation where the deck is stacked against them, and explaining how unfair it is, having a lawyer that can explain how unfair this situation is, gives you a better chance of being acquitted or getting your case dismissed.
Getting pulled over for a DWI is not something for which people plan. It takes you by surprise. We know that no one expects to get arrested for a DWI. The following paragraphs describe what usually happen. If your case is different from what is described below that might mean the officer didn’t handle your arrest correctly. The important take away is that any time you are in contact with the authorities and feel you might be under investigation, ask for your lawyer. You want your lawyer. You want your lawyer more than anyone else in the whole world. No, they won’t give you a lawyer but asking for one makes all of your statements from that point forward inadmissible. You can’t do it politely. You can’t say maybe. You can’t ask. You MUST demand point blank. I’ll say it over and over, because I know not everyone will be reading this word for word. But it bears repeating: ask directly for your lawyer.
When somebody is pulled over, what typically happens is the driver is spotted on one of the major thoroughfares in San Antonio or one of our outlining counties, a police officer, who is trained to hunt for DWI’s, notices something about the driving that draws their attention, and the officer initiates a stop. Let’s pause here. The officer initiates a stop. The officer has sometimes been following for a really long time. They’ve been following even though the driving is causing them to be concerned, and they are following because they are building a case to use against you. They decide when and where and how long to observe you. Before the investigation has started they already have built in huge advantages. The National Highway Traffic Safety Association has a list of clues DWI officers are supposed to look for when hunting for potential DWI drivers. Hunting, I’m using that word on purpose. Because that is what police officers do, they hunt citizens looking to make DWI arrests. The National Highway Traffic Association list includes driving too slow, driving without headlights, and weaving between lanes, drifting inside your own lane, and many more. When we prepare a defense the reason for the stop is something that we look at, to make sure that it’s valid and Constitutionally appropriate. Usually, police officers in San Antonio and the surrounding areas have dash-cam cameras, and that footage is something that we’re going to obtain and pick apart second by second to make sure the officer actually saw what he is claiming he saw. The officer stops the car, and as soon as they smell an odor of intoxicants or alcohol, or they notice anything unusual about the person, they’re going to initiate a DWI investigation. Next, they’ll ask the person to step out of the car, and immediately they are noticing things.
In my opinion, the DWI investigation begins as soon as the police officer asks you to roll down your window, and really it begins once anyone is observed by a police officer driving at night. If you’ve been pulled over at night in San Antonio, Texas or any of the other communities in South Central Texas you’ve been investigated for a DWI. Once you have been pulled over you are operating in their world. You are under their microscope. Everything you do will be evidence that you are intoxicated. The officer looks to see how you reach for your driver’s license, the police officer notices if you are fumbling for your insurance, they’ll look to see how your fingers are operating and whether or not you’re having trouble pulling the driver’s license out of your purse. San Antonio Police Officers put you under a microscope. These officers look for every little detail. They will look to see if you are chewing gum, they will look to see if you are smoking a cigarette. They will claim that you are doing this because you are masking the odor of alcohol. All of this will be used to justify asking you to get out of the car. Once you are out of the car, they will observe you exiting the vehicle. If you use the door for support, that’s going to be something that they notice and take down. If you stumble as you go to the back of the vehicle, that’s going to be something that they notice and take down. They will use all of these things to justify your arrest.
At that point, they are going to ask you how much you’ve had to drink, and try to get you to make a statement. There is no good answer that you can give, and you should invoke your Constitutional right to remain silent. I WANT MY LAWYER! If you say you’ve had nothing to drink, they are going to wonder why there is this odor of intoxicants. If you’ve had X number of drinks, they are going to make note of that, as that is something to use against you. So, it’s my advice that as soon as somebody is pulled over, if they’ve been drinking or not, not to answer those questions, and to immediately ask for your lawyer. What you can do is give your driver’s license, answer biographical questions such as where you were born, what your date of birth is, and your name. You can answer those questions, but you don’t need to cooperate with them any further. YOU SHOULD ALWAYS DEMAND YOUR LAWYER.
Remember, your forefathers fought and died for your Constitutional rights. We have been trained to cooperate with authorities, but when you are being investigated, when the police want you to become a witness against yourself you need to use those rights for which your forefathers fought. You don’t need to answer police officers’ questions and when they ask you how much you had to drink, you CAN just say “I prefer not to answer that question; I NEED to talk to my attorney.” Talking to a police officer this way feels wrong, we’ve been trained not to be assertive with police officers. However, courts have found that unless you clearly invoke your right to counsel IT DOES NOT COUNT.
If you decide to participate in the investigation you will find that regardless of how you answer the DWI officer will then ask you to perform field sobriety tests. Field sobriety tests are not something that are required. Most people would do them. The first test that they do, they don’t tell you that they’re doing field sobriety tests. What they’ll tell you is they’ll say, “Hey, can I check your eyes to make sure you are okay to drive.” Once they say that, the chances of you being released, I would say, go to 1 in a 100. They are going to look at your eyes. What they are going to be looking for is something called Nystagmus. Nystagmus is an involuntary jerking that is present in everybody’s eyes, regardless of how much you’ve had to drink. When you’ve had a central nervous system depressant, and alcohol is a central nervous system depressant, the nystagmus is exaggerated and can be detectable by somebody who is looking at your eyes as your eyes track a light across your field of vision. YOU DO NOT WANT TO TAKE THIS TEST. MAYI LOOK AT YOUR EYES TO SEE IF YOU ARE OKAY TO DRIVE? NO!
There are lots of problems with Horizontal Gaze Nystagmus but the main one is that it is ONLY OBSERVABLE by the police officer that’s doing the test. Unless the test happens to be caught by the body cam of the officer doing the test. No one but the police officer will ever really know whether or not you passed this test. However, we are experts at picking the police officer’s performance around. We TURN THE MICROSCOPE AROUND and pick apart their performance to show that maybe you were unlawfully arrested.
So, the officer will ask if he can check your eyes to see if you are okay to drive. Most people will look at that question and they’ll interpret that as saying, “This police officer is here to protect me. This police officer will let me go regardless of how much I’ve had to drink. This police officer wants me to be okay and is going to release me. I am ok, I know I’m not intoxicated. I would never decide to do such a thing, so I will trust the police.” IT’S A TRICK. IT’S A TRAP. GO BACK YOUNG SKYWALKER YOU WILL NOT PASS THIS TEST! But most people, almost everyone who has not read this book, will take the test. And they will fail.
San Antonio has a DWI task force that has a part of its policing unit that is tasked with making DWI arrests. If you are in the clutches of one of these officers, the chances of him not seeing this thing, that only he can observe, is very small. IT’S HIS JOB TO ARREST PEOPLE FOR DWI’S. The best answer to that question, “Do you mind if I check your eyes so I can make sure that it’s okay for you to drive?” is, “Yes, I do mind I WANT MY LAWYER” or “No, I don’t want my eyes checked. Thank you very much. I NEED MY LAWYER!”
Again, you can ask for your lawyer, you can tell them that you are not interested in participating, that you don’t think the test is fair, and that because you’ve read this book you are not going to take the test. That is the smartest thing that you can do.
The next test that they are going to ask you to take is a Walk and Turn test. There are a lot of misconceptions about this test. People like to practice it in bars. They believe that if they can walk a straight line they can pass the test. YOU CANNOT PASS THIS TEST. You are taking a test where the officer grades you and you don’t know what he’s grading you on. You think it’s about walking a straight line. In reality, it’s about everything else. YOU CAN WALK A STRAIGHT LINE AND FAIL THIS TEST. It is not a walk the line test. This is a Toe the Line test where you are put in a “starting” position. You are asked to stay in that position until the test begins. You are not told that the test already has begun, you are not told that they are already looking for clues, that it is already possible as you’re in that starting position with one foot in front of the next, that it’s already possible for you to have failed the test if you are having the trouble with maintaining that position, or even if you’re having trouble keeping your arms at your side. Most men, when they are put in the starting position, which is one foot in front of the other, which is really a dance position, not a normal, natural standing position. When you are put in that dance position, almost everyone always takes one foot and put it next to the other so that they can listen in a manner that it’s more respectful. This is a count the number of steps test and an imagination test where you have to walk down an imaginary invisible line. The Walk and Turn is also Keep Your Arms at Your Side test. Failing enough of these tests will be justification for taking you into custody for a DWI.
They are “validated” by the National Highway Traffic Safety Association as clues of intoxication, and can be used to justify your arrest. You are taking a test when you’re doing the Walk and Turn, and later when you’re doing the One Leg Stand, you are taking a test where they are looking for secret clues that will tell them whether or not you are intoxicated. Really what they are looking for are clues that will tell them whether or not they can justify saying that you are intoxicated.
The final test is the One Leg Stand. People with inner ear problems, older people, even people with normal balance problems have trouble with this. Again, not only are they looking for you to be able to maintain your balance on the One Leg, they are also going to be making sure that you don’t have any other kinds of issues. If you put your foot down, that’s a clue; if you use your arms for balance, that’s a clue. If you stop counting, that’s a clue. All of these secret clues are going to be used against you so that they can justify their decision to take you into custody.
To summarize, the best possible response is, “Look, Officer, I WANT MY LAWYER! I’m not going to take the field sobriety test. I appreciate what you’re doing, I respect you, but I’m not going to take that test.” I had a client once who called them monkey tests. Monkey See Monkey Do. He told the officer “I fought in World War Two so I wouldn’t have to do those monkey tests!” Good for him. His case was dismissed because he refused to cooperate with the police.
For more information on Aftermath Of A DWI Stop In Texas, a free initial consultation is your best next step. Get the information and legal answers you’re seeking by calling (210) 202-4233 today.