January 2008

This question via the internet. (Feel free to email me other questions about Texas DWI laws.)

Well, let me change the way the question is phrased. It’s a standard question I hear, but from those who have already been arrested and charged with DWI. Invariably, it comes from someone who took the standardized fields sobriety tests (SFSTs), and more likely than not, is let’s say ‘nervous’ that they didn’t do so well on them.

In that instance, what the client is really asking his DWI lawyer is, “The police officer didn’t tell me I could refuse to do the tests. Can you get them thrown out / ignored / suppressed?”

No, at least not on that basis. Police are not required in Texas, or anywhere else that I’m aware of, to tell DWI suspects that they may politely refuse. In fact, it’s quite the opposite.

I’ve seen quite a few DWI videotapes from Austin arrests where the officer tries to convince the person out on the scene that they should take the tests, even after they politely refuse. Some of the time the officer pretends to not understand that my client is even exercising their right not to submit to the tests.

Other times, they’ll say “OK, but you don’t know what I’m going to ask you to do… Let me just demonstrate the test for you…”

The ‘demonstration’ of course, includes standing with your feet together, hands at your side, place your right foot in front of your left foot, stay in that position until I tell you to start… in other words: the test has begun before the officer fully demonstrates it.

However, there’s a more important aspect of this question from my perspective. It’s what I call ‘spilt milk’.

If you’ve recently been arrested for DWI, more likely than not, you’re playing the ‘split milk’ game. 

  • If only I had turned right instead of going straight. 
  • If only I had left the bar earlier (later?)
  • If only I had taken a cab. Etc., etc.

There’s no point crying over spilt milk. We’ve got to play the cards we’re dealt, and that’s OK. I tell my clients to give themselves 2 or max 3 more days to beat themselves up over the arrest, and then let’s get on with building our defense.

In Austin, the DWI process takes several months, four to six months usually, sometimes longer. You’ll drive yourself crazy if you play “I should have done this differently” the whole time.