Houston Drunk Driving Defense Attorney
Houston DWI Lawyer

Do I have the constitutional right to speak to an attorney before I have to take a field sobriety test?

Your right to an attorney or to advice of counsel does not attach until you are formally arrested or placed in custody. If at any time during the officer's stop you believe you need an attorney, it is always good policy to ask for an attorney. Listen to what the officer says in response to your request for an attorney, as this response could be very important if he misrepresents the law to you.

Should I refuse to submit to the field sobriety test?

You are not legally required to take a field sobriety test. This is unlike the chemical tests to determine your blood alcohol concentration [BAC]. When asked to take a chemical test by a police officer that has already arrested you, if you refuse there are serious consequences; i.e., loss of your driver's license. You can, however, respectfully decline to take the field sobriety test. Remember, always be polite and courteous to the officer. If you are rude or become abusive or obstructive, the only person who is going to lose is you, not the police officer. You can certainly refuse the field sobriety test in a polite and courteous manner.

If the police officer asks me if I have been drinking, how should I respond?

If the officer asks you "Have you been drinking?" your answer will be a significant factor in the officer's decision to arrest you and in the prosecution's case against you if you are charged and tried for drunk driving. Such questions are "accusatory" in nature and you should respectfully decline to respond in a polite and courteous manner. You can respond, "I would like to speak with an attorney before I answer any questions." It must be remembered that the officer does have a right to certain information that the courts appear to look upon as routine questions. For example: What is your name? What is your address? What is your date of birth? Etc. When the officer inquires into drinking, however, ask for an attorney as set forth above. The officer will then probably say you do not have a right to an attorney and ask you to answer the question. At this point, your best course of action would be to "respectfully" decline to answer. A good drunk driving attorney will give the jury some reason for your respectfully declining to answer the question.

Should I consent to a chemical test to determine my blood alcohol concentration?

A driver is required to submit to a chemical test of his blood, breath or urine upon request of the police officer. The consequences of refusing to submit vary from state to state, but usually your driver's license will be suspended. This driver's license suspension may even be upheld if you are subsequently found not guilty of the drunk driving charge.

In the trial of the drunk driving charge in a court of law, your refusal will in all probability be introduced by the prosecution as evidence of your "consciousness of guilt." Without a doubt, however, a competent criminal defense attorney will offer other reasons for your refusal.

The decision to refuse a chemical test is one not to be made lightly. If you believe that submitting to a chemical test will produce evidence of a high blood alcohol concentration, you must weigh that against the consequences for refusing to submit.

Which chemical test should I choose?

The police officer will offer you a choice of breath, blood or urine tests. If one of the tests is not available, you will have to select from those that are; i.e., if urinalysis is not available, you are going to have to choose breath or blood. You do not have a right to choose urinalysis and then try to argue it's their problem that they didn't have it available. You will lose this argument. The officer will in all likelihood treat you as a "refusal" and all of the adverse consequences associated with a refusal will occur.

If you choose a breath test, at the completion of the test ask the officer for a second test of either blood or urine so that your defense attorney can run an independent test to compare the results against the breath test. It is important to remember that if you are concerned that there may be any substance in your body, other than alcohol, then by all means select only breath and do not take a second test of blood or urine.

The most accurate test is a blood test. The next most accurate test is breath and the least accurate is urinalysis. If you are sure of your sobriety, choose blood. Or in the alternative, take a breath test and ask for a blood test as a second test. If you are concerned about your state of sobriety, choose a urine test.

Should I get a lawyer? Why can't I represent myself?

You certainly have a right to represent yourself, but remember the very old legal maxim that goes, "He who represents himself has a fool for a client." A drunk driving charge requires an expert drunk driving attorney, someone who is familiar with the analysis methods, evidentiary issues and constitutional issues that will be faced in a drunk driving trial.

If you are going to seriously defend yourself against a drunk driving charge, you are going to need an experienced drunk driving attorney. How do you determine what kind of attorney you need? The attorney who prepared your will, the attorney who handled your divorce, or the attorney who handled your personal injury or workers' compensation case will probably not be the attorney you need. The best way to find a qualified attorney is to ask questions of that attorney and establish his or her qualifications. The attorney you select must be someone who you have confidence in, who can communicate with you, can communicate with the court and understands the complex issues presented in a drunk driving case.

If you or someone you know in Texas has been charged with a DWI and needs the assistance or legal counsel of an experienced Houston Drunk Driving Defense Attorney, call Jed R. Silverman today at 866-655-3961, or complete the contact form provided on this site to schedule your free consultation.