DWI Defense

TEXAS DWI CASES – BASIC ADVICE

This advice provided courtesy of Dallas DWI defense attorney John Gioffredi

4131 N. Central Expressway, Suite 680, Dallas, Texas 75204 ph. (214) 739-4515

There is no excuse for driving while intoxicated! If you ever get a DWI, I’ll be happy to try to win your case for you, but I’d be a lot happier if you just didn’t drink and drive! If you drive drunk, you can kill yourself or someone else. No amount of legal advice can ever change that.

I am attorney John Gioffredi. I defend DWI cases. I try to provide a copy of this information to all of my clients and friends. They almost always tell me the same thing: “Thanks, but I’ll never need this information. I’ll never get arrested for DWI.” So far, over 2,000 of my clients and friends have been wrong. Over 2,000 of them have beenarrested for DWI!

When those unfortunate people who have been arrested for DWI come into my office, I usually give them a copy of this information. What do you think they typically tell me? It goes like this: “I sure wish I had this information before I was arrested, but believe me, I sure don’t need it now. I’ll never get arrested for DWI again!” So far, over 100 of my first offense DWI clients have been arrested a second time! Then what do you think they tell me? “I sure wish I had studied that information the first time you gave it to me…”

Most people are in denial. Most people think that it’ll never happen to them. Most people believe that they will never be arrested for DWI. But over 10,000 people a year are arrested for DWI in the Dallas area. What makes you think that it couldn’t happen to YOU? Why are you so special? The best way to BEAT a DWI case is to PREPARE for it before it happens! And the first step to prepare for it is to acknowledge that IT REALLY MIGHT HAPPEN TO YOU! Until you acknowledge that reality, you’ll never be motivated to take the steps necessary to get prepared. The police will gladly take full advantage of your ignorance. They have a written, step-by-step plan detailing EXACTLY what they are going to do to arrest and convict you of DWI. It is very thorough, and very well thought out. What is YOUR step-by-step plan to prevent the police from succeeding in arresting and convicting YOU?

If you actually take the time to learn this information, and create a plan - just in case you are stopped and / or arrested for DWI - there are very few circumstances where you won’t be able to win your case. So let’s get started:

The first two rules:

POLITELY REFUSE TO TAKE ANY TESTS
WHEN THE POLICE INFORM YOU OF YOUR RIGHT TO REMAIN SILENT, REMAIN SILENT!

Situations may vary, but the easiest DWI advice to learn is for the suspect to simply refuse to participate in any questioning or DWI sobriety testing. The best way to do this, I believe, is to simply ask the officer which tests you are required to participate in. The answer should be "None."

The only thing you are required by law to do in a DWI investigation is to provide the officer with your proper identification. I would also recommend that you exit the vehicle upon request. The law is somewhat unclear on this point, but most police officers believe that you must exit your vehicle upon their request. If you don’t, they may beat the holy hell out of you! Don’t laugh – I’m dead serious. Your cooperation in exiting your vehicle should help you much more often than it hurts you. Pretty much all other actions on a suspect's part, including all sobriety testing, is purely voluntary.

Why do I recommend that you politely refuse all sobriety testing? Think about it – it’s just common sense: In any bar after midnight, probably 30% of the customers (at the very least) are legally intoxicated. But it is practically impossible to tell which customers are intoxicated, and which ones aren’t just by looking at them. The same is true with police (and judges, and jurors) - they generally can't tell if you are intoxicated just by looking at you. Unless you preform specific tasks, there generally isn’t enough evidence to convict, and often times not enough evidence to even arrest! “No tests” usually means “no evidence,” and no evidence usually means not guilty.

Here’s an intelligence test: During a DWI investigation, do you think that your friendly police will:

Ask you to do things which will make you appear sober, or
Ask you to do things which will make you appear drunk.

If you said “1,” stop reading right now! You are simply too stupid to be one of my clients. Even I have standards, you know…

The first test a police officer will typically preform on a DWI suspect is the "HGN" (Horizontal Gaze Nystagmus) tests. This is the "follow the pen with your eyes" test. The police are looking to see if your eyes follow the pen smoothly, or whether they stop and / or jerk as they move from side to side. As soon as the officer requests you to do this test, it should immediately click in your mind: They are trying to arrest me for DWI! You need to immediately implement your DWI survival plan. You should either politely ask the officer which tests you are required to perform (my preferred response), or else immediately tell the officer (always politely) that you only wish to perform the tests that you are required to perform (almost as good).

Rule number 3 (practice this until you start saying it in your sleep):

“LOOK, OFFICER, I KNOW THAT I’M NOT INTOXICATED, BUT I’D RATHER NOT TAKE ANY TESTS THAT MIGHT MAKE ME LOOK BAD. WHICH TESTS AM I REQUIRED BY LAW TO TAKE?”

If the officer insists that you perform sobriety tests (I've never seen this, but I guess anything is possible), just inform them that a lawyer friend (that would be me) has told you to never take any sobriety tests - period. Even if you are 100% sober. None of the tests! Never.

The officer might still arrest you for not taking the sobriety tests, but he might instead just insist that you to contact a friend to come pick you up. I've seen both. Either way, it's a lot better than being arrested for DWI and providing the police with a lot of damning evidence to be used against you at trial.

DWI ADVANCED DEFENSE STRATEGIES:

Probably the most important part of protecting yourself against a DWI arrest is acknowledging that it might happen to you. Until you acknowledge that it could happen, you probably won’t take the steps necessary to protect yourself. Like most things in life, preparation is the key. If you wait until you are arrested, you will be at the mercy of the police and dumb luck. The police have a detailed, step by step approach to their DWI investigations and arrests. If you want to stay a step ahead of them, you should have a detailed step by step plan as well.

Generally, I advise people to politely refuse to take any sobriety tests. That’s because in most cases, when there are no sobriety tests there isn’t much evidence, and when there isn’t much evidence the defendant wins. Police officers are all taught that all sobriety tests are voluntary. But they certainly won’t tell you that unless you ask them point blank. Remember that the police may be videotaping you at any time. It's a good idea to state clearly "I know that I'm not intoxicated" once or twice. (More than twice might look like you are ranting, and is probably counter-productive.) A particularly good time to do it is right before refusing to do any of the sobriety tests. You may wish to state: “Officer, I know that I’m not intoxicated, but I just don’t trust your tests. I believe that they are designed to make people look drunk.” This approach may or may not work with the officer, but it can be extremely effective if your case goes to jury trial (and all cases go to jury trial unless some other disposition is reached). You may be able to convince the jury of your innocence all by yourself by using this one simple tactic! No juror would ever suspect that you actually had the foresight to plan ahead! Hell, no one ever plans ahead for a DWI – except YOU! And that’s why you’ll probably win your case! (I may help a little, too…)

You may also wish to practice some of the easier sobriety tests. For example, you could offer to recite the alphabet for the officer, or to count backwards. This strategy can be effective, but it is somewhat of a high risk maneuver. If you perform the tests well, you may convince the jury of your sobriety and end up winning your case. But if you screw it up, you may end up losing your case because of it!

Stay in control! If the officers ask you to recite the alphabet from the letter “C” through the letter “T”, think first. Do you really want to do that? You can always refuse, or you can simply insist on doing the tests on your own terms. Remember: All tests are voluntary! You may wish to insist on reciting the alphabet from A though Z, for example, or not at all.

Be aware that you will likely be video-taped throughout your encounter with the police, so try to look awake, alert, and in control. You are even being recorded when you are in the back of the squad car, so shut up and sit up straight! Jurors are going to be evaluating you based upon what you say and what you look like – even in the back of the squad car!

Usually, the police will ask you to stand with your feet close together in an attempt to impair your balance and exaggerate any sway that you might have. I’d recommend that you insist on standing with your feet at least shoulder length apart, or in whatever manner feels most comfortable for you. There is no law that says you have to stand in the exact manner that the police instruct. If they press you on the matter, ask them to show you the law that says you have to stand exactly the way they tell you to. There is no such law and the police know it.

As a side note, you should probably go ahead and stand where the police tell you to stand. Typically they tell you to stand on an “X,” or in a box, or on some footprints painted on the floor. There is no law that says that you have to, but I’ve seen officers go ballistic when people don’t. Go ahead and stand where they tell you to, just don’t stand in a way that’ll make you look bad – like with your feet all of the way together, like they typically ask.

To the extent possible, you want to stay in control of the situation. It’s obvious when you think about it, but here is your rule number 4:

DO AND SAY THINGS THAT MAKE YOU LOOK SOBER ON THE VIDEO, AND DO NOT DO OR SAY ANYTHING THAT MAKES YOU LOOK INTOXICATED.

Try to say as little as possible, and when you do speak, focus on speaking very clearly. Slurred speech is a sign of intoxication. Clear speech tends to indicate sobriety.

BREATH AND BLOOD TESTS:

Generally you should never take a breath or blood test, but there are a few exceptions. If you really have had only one or two drinks, or maybe three drinks over a four hour period or more, go ahead and take every test, including breath and / or blood. You shouldn’t be legally intoxicated! You should test well below the legal limit of 0.08.

Here are some creative ways to refuse a breath test without simply stating that you refuse (which may irritate or offend a juror):

Ask the police: “If my alcohol level is under the legal limit, will I be free to go?” They will either completely refuse to answer that question, or they’ll simply tell you “no.” Either way, it shows the jury that there is no good reason to take the test, even if you are under the legal limit!
Ask if they will save your breath sample for an independent analysis later (they save blood tests, but they never save breath tests). “I’ll give you a breath sample as long as I can get an independent expert to retest it later.” That request will seem reasonable to a juror, but the police won’t do that. They will never agree to those terms.
If you feel like being a little more confrontational, provide them with one breath sample, but not a second. The intoxilyzers used throughout Texas require TWO breath samples to provide a valid score, but the information that they read to you (the “Texas statutory warnings”) only request you to provide ONE (“a”) breath sample. Provide the first breath sample, then simply refuse to provide the second one. Tell them that you have provided “a” specimen as requested. There’s nothing on that form stating that you have to provide more than one! (I’ve seen this done only once, but it worked! It confused the hell out of the police, but it seemed more than fair to the jurors! So…it worked once, but I still wouldn’t recommend it.)
Agree to provide the samples, but blow “around” the mouthpiece, not into it. Lots of people do this. The police know this trick, and they’ll comment that you aren’t blowing into the mouthpiece. But the jurors can’t tell. Try it again and puff your cheeks out and blow real hard, just not into the mouthpiece. Juries don’t know how intoxilyzers work, and they can’t tell if you are faking it or not. (I don’t recommend this approach either, but I’ve seen it work.)
Would you like to make a police officer really squirm? Portable breath tests (PBTs) are sometimes used at the scene of the stop. PBTs report a numerical alcohol concentration, but those results aren’t admissible in court - for any reason. The PBTs are not considered accurate enough for court room testimony. If you are ever offered a portable breath test, ask the police this question: “Are the results admissible in court?” They’ll answer “No.” Then ask: “Can you still arrest me if the results are under the legal limit?” The answer is yes, but I doubt that a cop would ever say that on a video. He’ll probably start stammering and stuttering and try to change the subject, but be firm. “Officer, please answer my question – can you still arrest me even if I am under the legal limit?” If the officer finally answers you, follow up with this question: “So if I blow, and I am under the legal limit, you can still arrest me, and the jury will never get to see the results?” “Are you kidding me? Then why would anyone take it? That’s ridiculous! No, thank you, sir!”

The only admissible breath test in Texas is done at the jail, on a machine called an Intoxilyzer 5000 AS-A. On intoxilyzer tests, the longer you blow, the higher the results. Some experts testify that the harder you blow, the higher the results. And all of the experts agree: Two people with the exact same blood alcohol concentration can blow significantly different breath test results. And even the best intoxilyzer ever made can’t show what the suspect's alcohol concentration was at the time the suspect was actually operating the motor vehicle. They can only show your alcohol concentration when you are blowing into the machine - at the jail.

LICENSE SUSPENSION CONSEQUENCES:

There are various drivers’ license suspension consequences involved in a DWI arrest. For the most part, the license suspension consequences are insignificant compared to what a DWI conviction can do to you. For first offense DWIs, an occupational driver's license can easily and quickly remedy any suspension of a person's Texas driving privileges. DWI convictions are forever. Driver license suspensions are a hassle, but they are temporary.

DETAILS REGARDING DWI SOBRIETY TESTS:

There are three standardized field sobriety tests (SFSTs):

1. HGN (Horizontal Gaze Nystagmus): The police have you follow a pen or a light with your eyes, to see if your eyes follow smoothly (a sign of sobriety) or if they jerk repeatedly (supposedly a sign of intoxication). I advise that, before doing this test, you ask “What exactly are you looking for in my eyes?” They should tell you “Jerking movements, or the lack thereof.” Then you should state: “Can’t head injuries cause those same jerking movements, and some medications?” Yes, they can. “Well, then, I’ve had head injuries before, so I’m not going to do that test.”

The Three (Supposed) Indicators of Intoxication on HGN:

Eyeballs jerking as the pen is moved horizontally
Eyeballs jerking prior to 45 degrees when the pen is moved very slowly
Eyeballs jerking when the pen is held out to the extreme left and right

There is plenty of scientific literature establishing that eyeballs jerk like this when alcohol is present. However, in my opinion HGN shouldn’t be used as a sobriety test because the eyes in some people jerk at alcohol concentration levels half of the legal limit, and sometimes even lower than that. There are 6 possible “clues” that the police look for in HGN testing. Their training says that 4 or more clues indicate intoxication. But a study done by the National Highway Traffic Safety Administration (NHTSA) shows that some people show 4 clues at alcohol levels less than 25% of the legal limit! (The legal BAC limit is 0.08, and the NHTSA HGN robustness study shows one person having 4 HGN clues at 0.016 BAC!)

2. The WAT (Walk And Turn): You may have heard this test being called "walking a straight line." In the DWI industry, it's referred to as the walk and turn, or the “WAT”. The police ask you to stand on a line with the heel of your right shoe touching the toe of your left shoe. You are asked to place your arms straight down to your sides (as if they were against the seam of your pants) and maintain that terribly awkward position for about 90 seconds while they give you additional instructions. You are then instructed to take 9 steps out and 9 steps back, counting each step out loud, looking at your feet, keeping your arms to your sides, touching heel to toe on each step, and turning in a very specific unnatural way. There are the eight clues, or indicators of intoxication, that the police look for during the walk and turn:

Starting before being told to do so
Failing to maintain the starting position until told to begin
Using your arms for balance
Stepping off of the line
Stopping during the test
An improper turn
Failing to touch heel to toe.
Taking an incorrect number of steps

3. The OLS (One Legged Stand): The police ask you to stand on either leg with your other leg straight out in front of you, six inches off of the ground, with your toe pointed and parallel to the ground. Your arms are to be held straight down to your sides (as if against the seam of your pants), as you count to 30 by stating "one- thousand one, one-thousand two, one-thousand three, etc."

The Four Supposed Indicators of Intoxication:

Raising your Arms for Balance
Hopping
Putting your Foot Down
Swaying

OTHER COMMON (BUT NOT STANDARDIZED) SOBRIETY TESTS:

Some police will ask the DWI suspect to perform additional sobriety tests. Although the following tests are not “standardized,” they are still commonly used:

Reciting the alphabet. You'd be surprised at how many people have difficulty reciting the alphabet. To make it more difficult, the police often ask the suspect to start and end at a designated place somewhere in the middle, often asking you to start at the letter C or D, and ending with the letter S or T. Unless you have practiced reciting the alphabet lately, I’d advise not doing it as a sobriety tests. Better yet, practice it until you can do it right.

Counting backwards, from one nondescript number to another, typically from 38 to 22. The hardest part of this test seems to be remembering where to stop.

The finger count: The police have the suspect touch his thumb to each of his fingers, counting each of his fingers as he touches it, one thru four, and then backwards from four to one.

The Rhomberg stationary balance test: The police have the suspect close his eyes, tilt his head back, put his arms straight down to his sides, and estimate when 30 seconds is up. I wouldn't recommend you doing this test under any circumstances. It almost always makes people look bad.

JURISDICTIONS THAT GENERALLY TAKE BLOOD TESTS

(Houston, San Antonio, etc.)

Some jurisdictions take blood tests any time a person refuses to provide a breath test. While it is certainly possible to beat a blood test case, it is more difficult, and some additional steps are recommended.

When they first stop and ask you about how much you have had to drink, you can tell them you only had 2 drinks. But if they arrest you, and you know that they are going to give you a blood test, change your story and tell them that you recently drank three or four shots of tequila – “right before you pulled me over.”

That provides you with the perfect rising alcohol defense. Depending upon your weight and how much food you have recently consumed, your alcohol level could rise anywhere from 0.04 to 0.16, or even greater, while four shots were being absorbed into your blood stream. If you had four shots 5 minutes prior to being pulled over, there is no way the government could prove that you were over the 0.08 limit at the time you were driving.

The second thing you would want to do is ask the police specifically if they are going to stick a needle in your arm for blood if you refuse a blood test. Get that on the video recording! “I have heard that if I refuse a breath test, you can stick a needle in my arm and take my blood. Is that correct? OK, then, I’ll take the breath test but ONLY because I don’t want anyone sticking a needle in my arm.”

If you get that on video, the breath test results may be thrown out because you provided the samples under duress.

This information is the exclusive work product of, and courtesy of: Me! I’m attorney John Gioffredi of Dallas, Texas. I have been successfully defending DWI cases since 1987 in Dallas, Texas and surrounding areas. Contact me at johngioffredi@gioffredi.com if you have any comments, questions, or corrections. You may freely distribute this information to any person for any non-commercial purpose, provided that you include my name as author and properly attribute this information as coming from me. If you try to make a buck by selling this information to anyone, email me first! I want my cut!

This information may not be 100% accurate in some situations. There are a million variations in the circumstances under which a DWI investigation may be undertaken. Although accurate to the extent possible, the information contained herein should be considered general in nature, and not necessarily applicable to every situation.

This information last reviewed and updated on February 15, 2012. Peace. Out! - JMG

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