TIPS BEFORE YOU ARE PULLED OVER
Don’t Drink and Drive! That is the best advice anyone can give you. Even though it is LEGAL to drink and then drive (as long as you are under .08), it is best to not put yourself in a position where your freedom rests in the hands of an officer who may or may not be trained properly in determining whether or not you are intoxicated. It is way too easy to have a designated driver, call a cab, or hail an Uber.
TIPS ONCE YOU ARE PULLED OVER
If you have been drinking, even if you know you are not intoxicated it can be terrifying to see the red and blue lights in your rearview mirror.
First thing first, calm down and take a deep breath. Is you seem overly nervous or anxious the officer is going to write that in the police report and they are going to use that against you in court. You have to remember that everything you say or do is likely being recorded, so just act as normal as possible.
Remember to address the officer with respect, and hopefully that courtesy will be reciprocated. If the officer smells any alcohol on your breath the sad truth is you are probably going to jail, so if he indicates he smells alcohol, and he asks you to get out of your car, there is almost no reason to cooperate at that point. Just tell the officer politely that you do not wish to answer any of his questions, that is perfectly within your rights. Anything you say can be used against you, and when you are nervous, words typically don’t come out the way you plan them to. For example, the classic “I can’t do that sober”. You might mean, “IM SOBER, AND I CANT DO THAT”. But it can easily be taken out of context to mean, “IM DRUNK, AND EVEN IF I WAS SOBER I COULDN’T DO IT”. Just don’t say anything, they want you to put your foot in your mouth.
They are going to ask you to do sobriety tests. Typically the three sobriety tests given are the:
- HGN (horizontal gaze nystagmus) test, otherwise known as the pen or eye test
- Walk and Turn Test – walking a straight line
- One Leg Stand – balancing on one leg
Those three are the standardized tests taught to the officers by NHTSA (National Highway Traffic Safety Administration). But sometimes officers might offer other tests including:
- Rhomberg Test – tilt head back, close eyes, estimate 30 seconds
- Alphabet Test- state the alphabet from one letter to another
- Finger to Nose Test – rotating hands on officers commands
- Finger to Thumb Test
- Various Others
The most important part of sobriety tests is YOU DO NOT HAVE TO DO THEM!
Studies have shown that people who are sober fail at the same rate as those who are intoxicated. These are tricky tests. They don’t tell you what they are grading you on, they don’t let you practice, you have no clue if you fail or not, and plain and simple they are HARD TO DO!
These are not “normal” physical activities. I do not know about you, but I don’t walk heel to toe in a straight line to get where I am going. Nor do I stand on one leg without being allowed to use by hands for balance just for fun. They are not testing you on normal activities, they are making you do very unusual things.
It has also been shown that being overweight, having previous injuries, or being a certain age can compromise the validity of the tests as well.
There is absolutely no point in doing these ridiculous tests. Again, if an officer is going to arrest you, they are going to arrest you. No need in giving them additional ammunition by doing these tests that you are not going to pass (whether you have been drinking or not!)
YOU HAVE BEEN ARRESTED, NOW WHAT?
Shut your mouth. Just don’t talk. If you say anything, just politely say, “I have nothing to say, and I do not wish to answer any questions.”
Anger, fear, and sadness are very strong emotions. They emotions tend to go from our brain, to our heart, to our mouth. And when you are emotional almost nothing good is going to come out of your mouth.
Let’s go through some possible reactions and see how they play out.
- Anger – If you tell off the officer it’s going to be documented in the offense report, and likely recorded on video. You do not want to make yourself look like a jerk to a prosecutor and a jury. Nobody is going to be sympathetic to a jerk, whether you are an innocent jerk or not.
- Fear/Panic – I have had clients who were terrified once the handcuffs hit their wrists. The typical reaction is to panic and start apologizing. “I’m sorry for drinking”, “Please don’t do this, it won’t happen again”, “I know I messed up”, are frequent statements that come out of the mouths of my INNOCENT clients. Why the heck would they say those things if they are innocent? It is just human nature. You will say whatever you think gives you the best chance to get out of the situation you are in, but believe me, you are not going to talk your way out of an arrest.
- Sadness – “My mom/spouse/boyfriend is going to kill me”, “I don’t know why I do this to myself”. These are innocent statements that can be taken out of context. Just stay calm, and don’t say anything.
Once you get to the station (sometimes before), they are going to attempt to interview you with questions pertaining to your evening.
For example: Where were you coming from, where were you going, how many drinks did you have, when was your first drink, when was your last drink, what was the time of your first drink, what was the time of your last drink, what was the last thing you ate, at what time did you eat, etc, etc, etc.
DO NOT ANSWER ANY QUESTIONS. They are trying to get information from you to use against you, and even if you are honest they sometimes find a way to use it against you and make your case more difficult to defend. Again, just politely exercise your right to remain silent and ask for a lawyer.
At this point they will typically ask you for a sample of breath and ask you to blow into one of their breath testing machines. You should never do this test! First of all they cannot force you to do it, secondly it is junk science. There is no way that you can ever know for sure if that machine worked properly.
It’s so bad that the machine is given an OK if there is a .02 differential in the two tests that they will make you take. For example, at 11:15pm your test could say .13 and one minute late the test could say .15 and the test would be considered valid. Is it possible that you went up .02 in a few seconds? Absolutely not! Never take this test.
In many counties, they have no refusal, meaning if you refuse they will attempt to get a judge to sign a search warrant to get your blood. That is fine. If they are going to do it, make them do it. A lot of things can go wrong in this process to help your case. And when people say that blood is amazing evidence, that is absolutely wrong. You need an attorney who will understand the problems associated with blood and who can point that out to the jury.
Typically at this point you will be booked into the country jail, eventually get a bond, and be bonded out. For most of you, this is the point you say, “Well I wish I had known that BEFORE I got arrested”, but who randomly goes online and reads DWI attorney websites? If you didn’t do what I said above, don’t worry, almost nobody does, and the good news for you is I have experience in all types of situations.
Administrative License Revocation (ALR) Program
ONCE YOU ARE ARRESTED YOU ONLY HAVE 15 DAYS TO SAVE YOUR DRIVERS LICENSE!!!
Call Attorney Eric Benavides right away, the same day as you bond out! Some counties do not give court dates for months, and if you wait until you get a court date your license is 100% going to be suspended (even before you get your day in court).
In Texas, the Department of Public Safety (DPS) does not wait to see if you are innocent or guilty, they just automatically try to suspend your driver’s license. If you do not request your ALR (Administrative License Revocation) hearing within the first 15 days then your license is going to be suspended.
On a 1st DWI, if you gave a sample of your breath voluntarily and it was above .08, then you will lose your driver’s license for 90 days. If you refuse to take a breath test, then the suspension will be for 180 days.
IN COURT FOR THE FIRST TIME
When you go to court for the first time, they are going to ask if you have a lawyer. When they ask, just stand up and say yes, and that your lawyer is Eric Benavides. At that point nothing will happen until I talk to them.
On the first appearance I will typically sign an Attorney of Record indicating that I am your lawyer. I will then get copies of whatever evidence they have in their file. At that point I will typically ask for a reset (usually one month) so we can begin our investigation.
You have the right to get copies of all of the evidence that the State of Texas plans to use against you in court. One of the main pieces of evidence is the DWI video. As a DWI Attorney I typically see one of four types of videos.
- Scene Dash Cam Video – Some patrol cars have dash cams that record the incident. Sometimes they record the “traffic violations” all the way through arrest. I can typically see the sobriety tests being performed, I can hear the interaction between my client and the officer, and I can view my client’s mannerisms.
- Station Video – If a patrol car does not have a camera, they typically take you to the police station and put you in a DWI video room. This room is equipped with cameras, a line for you to walk on, and sometimes a breath test machine. When I get these videos, I typically see my clients do the sobriety tests, and I also get to watch them be questions. At times, I can also see the breath test being performed
- In Car Video – If an officer has a dash cam, they probably have an in car video as well. This is a camera that is pointing at you as you sit in the back seat and captures everything you say and do.
- Body Camera – If an officer is wearing a body camera, it gives the viewer the angle as seen by the officer. Sometimes its good quality, and sometimes it is not, but it is another view that is available in the new age of technology.
These videos are in my opinion the MOST IMPORTANT PART of a DWI case. Remember, in trial the jury is going to watch the video. If you are on video saying how drunk you are, if you are falling down, and then puke in the back of the cop car, yeah, it’s an uphill battle. But it’s also a great opportunity to show that you look normal and that you have not lost the normal use of your physical and mental faculties.
Another part of the investigation is getting the breath or blood test discovery. As the accused, you have the right to get copies of everything pertaining to your case. If you have a breath test case, you have the right to view all the documents pertaining to that particular machine. You can get all of the tests performed by the machine for many days before and after to look for inconsistencies and problems, and you can get all the maintenance records, among other things.
The same with blood tests, you have the right to get copies of all the evidence pertaining to the blood draw, how it was done, the chain of custody, the machine that was used, print outs of the charts created on your machine, etc.
As an attorney I also have the right to inspect the area where the test was done, and take photos for our potential use at trial.
It is also a standard practice of mine to inspect the scene of the arrest/stop in person before trial. I love to take my client, take photos, and talk through the day/night this happened.
Other evidence we also see from time to time are 911 calls when another driver calls you in for what they believe is unsafe driving, statements made by witnesses, accident reports in the case of a collision, medical records in case you or someone else was injured, and the documents submitted by the officer to DPS regarding the reason for the stop, and the results of the breath or blood test.
Once we have all of the evidence we are going to sit down together and we are going to make a determination on what is the best decision for YOU, not the best decision for me. I am always going to be honest with you. My goal is getting the best possible outcome for you, not for me.
If I feel like we have a winnable case, then I will recommend a jury trial. If I feel that your best bet is to pursue another option then I will recommend that as well. I am not the type of lawyer that is going to want to go to trial on every single case just to make more money. I am going to be honest with you on my evaluation.
We will sit down together and view all the evidence, talk through the options, and decide what to do. At the end of the day the decision will be up to you, and I will respect your decision.
Some possible outcomes are:
- Jury Trial – The #1 right you have is a jury trial, there is nothing fancy you have to do other than ask for one. If you want one, you got one.
- Probation – You may qualify for probation. On a misdemeanor, probation typically ranges from 1-2 years, depending on the facts of the case and the county. Conditions can vary, but typically a probation consists of a meeting once a month with a probation officer, monthly drug tests, a DWI education class, a donation to crime stoppers, a fine, community service, an interlock machine placed in your car or in your home. Probation is a lifetime conviction that can never be taken off of your record.
- Jail – A normal class B 1st time DWI carries a range of punishment from 1-180 days in jail. The jail time offered to you depends on the facts of the case, your criminal record, the county, the judge, and the prosecutor. In Harris County, a typical generic 1st DWI is given a 30 day jail offer (which is 15 days after 2-1 credit that is currently being offered by the Sheriff). Judges typically will suspend your driver’s license for up to 1 year on a first DWI if you accept a jail offer. Jail pleas are lifetime convictions that can never be taken off of your record.
- Pre-Trial Intervention – Pre-Trial intervention, or Pre-Trial Diversion is a special type of program that exists in certain (but not all) counties. A Pre-Trial Intervention is basically a probation that you do while your case is still pending. The benefit is that you do not plea guilty, and you do the program without a finding of guilt. If you do everything you need to do then the case is dismissed and there is no conviction on your record (and you avoid any DPS surcharges or license ramifications)
- SWEWP (Sheriff’s Weekend Work Program) – In Harris County there is the Sheriff’s Weekend Work Program. This is a community service program where you can serve a jail sentence through community service. If you qualify and the judge approves it, you can work on the weekends instead of going to jail. You are given 3-1 credit for every day you work. For example, if you are sentenced to 30 days in jail, it would be 10 days of work. This is a conviction on your record for the rest of your life, and can result in a driver’s license suspension.