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Grant M. Scheiner - Houston Criminal Defense Lawyer

What should you do if you are investigated for DWI in Texas?

As Houston criminal defense attorneys with extensive experience in DWI or DUI cases, many people ask us what is the best way to stay out of trouble if you find yourself the target of a DWI or DUI investigation in Texas. Of course, the smartest approach is to not drink and drive at all. Choose a designated driver. Get a cab. Walk.

Of course, it is not illegal to drink and drive. Any criminal defense lawyer with experience in DUI or DWI knows that in Texas, it is only illegal to drink and drive if you’re blood alcohol concentration is above 0.08, or you lose your “normal” use of your physical or mental faculties (whatever that means).

But the reality is, if you are pulled over, and a police officer smells any alcohol on you, you run a high risk of getting arrested. For one, police officers are taught to err on the side of caution and will usually arrest anyone who smells like alcohol for DWI (although this lead to some unfair arrests, this is understandable – would you like to be the officer who let the drunk go who later caused a fatality?). But before making an arrest, an officer will usually administer field sobriety tests (“SFSTs”) and ask you to take either a breath or blood test.

While most people know that they have the right to refuse a chemical test in a Texas DWI or DUI investigation, many people do not know that they can also refuse SFSTs. But is this the best approach? We believe that in many cases, it is. The SFSTs – which consist of the horizontal gaze nystagmus test, the one-leg stand, and the walk and turn – are extremely subjective tests which are a very poor indicator of intoxication. It is no secret that many sober people fail SFSTs, while many drunk people pass. Additionally, in a DWI or DUI case, a person will often be asked to perform the SFSTs on the side of a road, knowing that if they fail, they could be convicted of DWI and go to jail. If you choose to refuse SFSTs, we recommend doing so politely and with a clear voice.

The downside of refusing, of course, is that the officer might think that you are intoxicated (why else would anyone refuse SFSTs, the officer will conclude), and arrest you. But the point is that you were likely going to be arrested anyway and being subjected to a battery of subjective and unfair tests does not improve your situation.

Next, in Texas DWI or DUI investigations, the officer will usually ask you to blow into the breathalyzer, or give a blood sample. We believe that refusing is also the best choice, although it does carry its own consequences which should be considered. Although your license could be suspended for at least 180 days if you refuse, we believe that in many cases, it is still not a good idea to blow or to give blood. This is mainly because the police’s techniques can be unreliable, and of course, you have the right to not help the police in their investigation against you. As we have discussed in this blog previously, you can refuse a breath or blood test anytime, even on the dishonestly named “No Refusal” weekends (you have every right to refuse a breath or blood test on a “No Refusal” weekend!). In Texas DWI or DUI cases of course, if you refuse, the police could get a warrant for your blood but that will often add valuable hours to their investigation.

In Texas, there can be many consequences of a DWI or DUI and it is best to ask for a criminal defense lawyer as soon as you can to help you assess your options before you are arrested. If you have been charged with DWI, DUI or any  alcohol related offense, the attorneys at the Scheiner Law Group are an excellent choice, and will work to get the best possible result in your case.