This information is for citizens and is not intended to be any legal advice but to inform citizens of the problems they face when they come in contact with police who are questioning them about a serious crime.
Any questions about this should be discussed with your lawyer. Due to the ruling in Texas, Salinas v Texas, the law has changed regarding the right to invoke your Fifth Amendment rights under the United States Constitution and the Texas Constitution by remaining silent when questioned by the police. Just not answering a police officers questions and remaining silent does not protect your right to the Fifth Amendment, you must specifically invoke your right to remain silent.
The advice that an attorney has told you in the past:
“don’t answer any questions if the police contact you.”
Is not sufficient now to rely upon the Fifth Amendment to protect your right to speak to the police. Some advice an attorney may tell you in the event of a DWI stop , once the alcohol questions below start may be proper:
“If I am free to leave, I would like to leave?”
If the answer is that you are not free to leave, then the following would be a good answer:
“I will not answer any questions or take any tests with out my lawyer present”.
You should then remain silent to any questioning and if you say anything insist on having your lawyer present. You have the right to refuse the road side tests. As to the request to take the breath test it is best just to say : “I would like to consult with my lawyer and I will do what he says”. Although this will be taken by the officer as a refusal a jury may think this is a proper request .
Many counties in Texas have started pretrial diversion programs for first time DWI’s. Fort Bend and Harris County have these such programs. We practice in both of these and other surrounding counties and have reviewed these programs. Fort Bend County has a program that is newer and came in with the new District Attorney.
Both programs offer the ability to have your DWI dismissed and the records expunged if you successfully qualify and complete the program. There are restrictions that are similar to both programs. There was also a change in the law dealing with the expunction of DWI convictions and other convictions in the past under certain circumstances. We will have an article on that later.
There can not have been an accident, even a single car accident. In Fort Bend County if there is an accident involved then you can possibly qualify for the DWI court but will not be able to get into the DA PT program.
If there was a breath test or blood test there is a limit on how high it can be to qualify for the DA PT program. Harris County has a threshold of .15, anything over that does not automatically qualify for the program. If it is over that amount you may still apply but will be a case by case basis and requirers some other special circumstance. Fort Bend County has its limit set at .12 but again you may still apply and it can be reviewed to see if possible to accept. It would again take some special circumstance especially since there is the DWI court which also offers dismissal for first offense in most cases.
Both programs are also limited by not having any alcohol related priors. Even if your alcohol related prior was not a conviction it will still probably preclude you from eligibility.
It never hurts to ask for these programs even if not automatically qualified.
The important thing to remember based on these requirements is that you are better off not taking the breath or blood test so you do not risk being over the threshold limit. The ability to get into one of these programs is huge and you might disqualify yourself if you take the test. This would mean someone who is actually over the alcohol level you are at might get the benefit of the program just by refusing the test.
You are also better off not taking the test because if you are .15 or higher you 1st time DWI would be a Class A misdemeanor and you would have a mandatory interlock on your vehicle as a condition of bond. The state administrative fee’s would also be higher if you are convicted.
Always be polite and cooperative, but remember you are not required to do any of the road sided tests, including the eye test (HGN), walk and turn, one leg stand or any other test they may ask you to perform. However if you refuse all roadside tests this could affect your ability to get into the program in some counties. This includes normal things like saying your ABC’s or touching your fingers to you thumb in a pattern. You are also not required to submit to a breath or blood test, your license may be suspended if you refuse just as it may if you blow over .08. You must seek an attorney immediately if you get arrested. You must have a request filed with in 15 days of the arrest to challenge the suspension. Even if your court date is not for weeks or even months you have time periods that run immediately.