Despite the banner proclaiming that the writer “won’t hide behind an alias” I couldn’t figure out the blogger’s name; his alias is Feisty – or based on the URL, is it perhaps Feisty Geek? – but he sure brings up a good point in his “DWI Hypothetical”.

The hypo assumes that Joe Blow gets stopped by the police while driving, investigated for DWI, refuses (politely, we hope) to do any of the proffered field sobriety tests, and then, after being arrested is asked whether or not he wants to take a breath test:

The officer then asks Joe to take a breath test for intoxication. Joe's thinks for a moment, and responds:

Joe: Am I under arrest?

Officer: Yes

Joe: Do I have the right to remain silent?

Officer: Yes

Joe: Do I have the right to an attorney before I answer any questions?

Officer: Yes

Joe: Well, I now invoke my right to remain silent and to have an attorney before answering any questions.

Officer: Will you submit to a breath test?

Joe: Officer, that sounds like a question. I have already said that I invoke my right to counsel before answering any questions.

Officer: Huh?

Great hypothetical, and we can see where the lay-legal reasoning is leading us. Heck, it’s where the legal-legal reasoning leads me too.

If I’m under arrest, and I now have the right not to answer any questions without an attorney present, I probably shouldn’t answer questions without legal advice. Especially questions like “Will you take the breath test?”

Sounds like this is exactly the situation where I should consult a lawyer familiar with DWI procedures. Feisty continues and takes a stab at answering his own hypothetical question:

If you don't refuse the test, but instead just refuse to answer the officer's question as to whether you will take the test, that might not pass muster as a refusal, particularly when you've invoked your constitutional rights as the basis for not answering the question.

Anyone know if this might work?

Unfortunately, at least in Texas, there is caselaw directly on point that is not favorable to this position, at least from the DWI suspect’s standpoint. A refusal to answer the question at all is “taken as” or “deemed to be” a refusal. And that will hold up in an ALR hearing. And on appeal.

Alas our Joe Blow is tagged with a 180 day No-Blow ALR refusal driver’s license suspension. Well, 180 days… assuming it’s a first time DWI. There’s a potential enhancement to a full two years if our hero has a prior alcohol related contact.

But Feisty hits the nail on the head with his last observation:

Obviously, anyone coherent enough to go through that conversation without slipping up probably isn't that intoxicated, even though they might blow a .08 if they tested.

Exactly. The DIC-24 Statutory Warning reads “If you refuse to give a specimen, that refusal may be admissible in a subsequent prosecution.” The intent is to blackmail the suspect into giving a sample.

But in fact, as Feisty points out, it’s just as easily evidence that you are not intoxicated.

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[Question via email.]

Since I don’t even know the jurisdiction this question comes from it’s pretty broad but let’s answer it from the Texas DWI perspective.

In most Texas DWI cases the officer will read the subject a form called the DIC-24 entitled “Statutory Warning”. It covers the various driver’s license penalties for refusing to blow, blowing over a .08, or being a minor with a detectable amount of alcohol in your system. The warnings state those possible suspensions are “not less than” 180 days, 90 days and 60 days respectively.

The “not less than” part obliquely refers to the possibility of longer suspension periods for folks with prior alcohol related contacts – which include but are not limited to prior ALR suspensions and prior DWI convictions.

The DIC-24 form usually ends with a portion where the officer checks “I am now requesting a specimen of Breath and/or Blood” followed by two checkmark portions:

• Subject refused to allow the taking of a specimen and further refused to sign below as requested by this officer.
• Subject refused to allow the taking of a specimen as evidenced by his/her signature below.

In theory the officer is supposed to ask for the breath specimen and then ask the subject to sign the form indicating their refusal.

If the suspect refuses to sign, the officer marks the form as a refusal to blow and a refusal to sign.

But I’ve certainly had cases where this procedure wasn’t followed. The unfortunate thing for my client is that even when I can prove that the officer didn’t follow procedure correctly it doesn’t necessarily lead to all that big of an advantage in the case.

It can show that he is unfamiliar with the DWI process – which in turn can create doubt as to the grading of the field sobriety tests – but it’s not going to get a criminal judge to throw the DWI charge out against my client. In other words, the state can still proceed to trial.

In most Austin DWI cases the actual reading of the DIC-24 and the verbal refusal by my client will be on tape; so the state can still legitimately argue it as a refusal. (And I can argue that refusing the breath test is a sign that you have not lost the normal use of your mental faculties since agreeing to it is almost always a bad idea.)

As for the ALR hearing, there are too many variables to predict whether this scenario would lead to a negative finding – that is a finding by the administrative law judge that DPS is not allowed to suspend my client’s license. But it could be a good start.

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KXAN ran a story tonight about Austin Chief of Police Art Acevedo’s plan to do away with breath test refusals in Austin DWI cases:

"My intent in the future is to make it so there is no such thing as a refusal. You can refuse all you want, but we are going to aggressively seek search warrants," said Acevedo.

The search warrant would give an officer the right to stick a needle in your arm to get a blood alcohol level, replacing the job of a jail nurse.

"It's about saving money for the taxpayer. If I have an officer that's already involved in a case, they're already going to be going to court. Come to find out, the defense attorneys around here are telling people not to give them a test," said Acevedo.

Ouch – literally. My friend and fellow Austin DWI lawyer Ken Gibson is quoted in the story as well:

"Folks that are exercising their right shouldn't be afraid, that by doing so, 'Bubba Police Officer' may stick them in the arm," said Austin DWI attorney Ken Gibson.

Gibson said police officers shouldn't play nurse as well.

"The officer's going to have a liability if they don't do it right. The city's going to have a liability if they don't do it right. In today's times of AIDS and hepatitis and everything else, police officers don't want to be out sticking needles in people," said Gibson.

Kenny’s got a point.

First, there’s no way that APD is going to be able to train police officers to be physicians, chemists, registered professional nurses or licensed vocational nurses. So that means Acevedo is going to have to find a way to train them to be ‘qualified technicians’ – the only other category of person allowed to take blood in a DWI case by statute. (See Texas Transportation Code 724.017.)

The law specifically says that emergency medical personnel do not meet the definition of ‘qualified technicians’ so who knows what training Acevedo thinks he can put his officers through to get them to meet the requirements of the statute. Guess we’ll have to wait and see.

Second, take a look at the last line of 724.017 (b):

This subsection does not relieve a person from liability for negligence in the taking of a blood specimen.

Acevedo knows a thing or two about civil lawsuits against police departments, so he might want to make sure he knows what he’s getting into on this one.

[I guess it could be worse…]

Update: Below the Fold

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Surfing the blogosphere I run across a post entitled “Examination Blanking Out” by Razeet:

Test anxiety is normal and can even help us function well in testing situations. The problem develops when the level of nervousness is so high that it interferes with what one is there to do.

As a result, with two people taking the exact same test, one might be calm, cool and collected, while the other is a pile of perspiration and blanking out.

Now, his post doesn’t have anything to do with Field Sobriety Tests; more likely he’s talking about studying all semester, and cramming for an exam, and still not doing well.

But DWI lawyers should remember that this phenomenon, that ‘some folks do better than others on tests’, and for a variety of reasons, is a well known fact. Indeed, it should be the theme of most DWI breath test refusal trials: starting in jury selection, bolstered by the arresting officer’s own testimony, and repeated in closing.

A series of questions I use at the ALR hearing to set this defense up goes something like this (answers left out – I don’t really care if the officer disagrees):

• Officer, you agree that folks in the general public vary greatly in their ability to perform physical tasks?
• Some people are gifted athletes, and some people are super klutzy?
• Most people are somewhere in between?
• Like most characteristics, there’s probably a bell curve of natural physical abilities?
• And you’d never met my client before that night?
• And you don’t know where on that bell curve he might fall?
• He might be an Olympic athlete, or he might be uncoordinated, you just don’t know?

I say I don’t care what the officer answers, because a jury will know that the truthful answer to all these questions is 'Yes'. If an officer disagrees, or ‘weasels’ on one of these basic truths, you may even be better off. You can certainly argue that he graded too hard in his evaluation of your client.

The basic point is this: everyone knows that ‘some folks do better than others’ on all types of tests…including DWI field sobriety tests.

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Every good DWI lawyer is familiar with the last section in Chapter 8 of the NHTSA DWI Detection and Standardized Field Sobriety Testing Manual that states:

If any one of the standardized Field Sobriety Test elements is changed, the validity is comprised. (***)

Indeed, one of the bedrocks of DWI defense is being able to grade not only the defendant’s performance on the FSTs, but being able to grade the officer’s administration of the tests. In some situations, improper instructions or grading can actually make an individual test or even the entire battery of tests inadmissible.

Unfortunately, for all NHTSA’s efforts to the contrary, there are many problems with these roadside tests – even when administered by the book. They do not, in fact, allow police officers to accurately determine whether someone is over a .08 blood or breath alcohol content.

Furthermore, most of the better trained officers will admit under cross examination that there is no correlation between some of the tests and “impairment” – I know most of the specialized Austin DWI task force officers will testify to that, because I’ve asked them under oath.

To the extent that “science” is involved here at all, the only real measurement is between performance on the tests, and being above or below a certain BAC. Which means there’s an inherent argument for defense lawyers in many DWI breath test refusal cases that the client’s performance on the field sobriety tests is not sufficient proof of intoxication.

(*** Every NHTSA Manual I’ve ever seen actually has this section in ALL CAPS AND BOLD – emphasizing that even NHTSA acknowledges how important this is.)

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In Texas, the answer is a pretty clear “no” (although the prosecutors will argue that it is).

I’ve written before on the legal theory called “consciousness of guilt”, and in some instances, it makes sense. However, when it comes to refusing to provide a breath or blood sample after a DWI arrest, the theory is logically useless.

In Texas, you are only asked to provide that evidence after you have already been arrested. After you have been arrested. And you won’t be let go even if the result is under .08 BAC.

When folks blow “under the legal limit”, the State proceeds on the alternate theory that you had lost the normal use of your mental and/or physical faculties - despite being under the “per se” limit of .08.

So, you’ve been arrested and you will be charged with DWI, no matter your response to “Will you take a breath test?”

If you blow over the per se .08 BAC limit, you have just made it more likely that you will be convicted. If you blow under, you don’t get to go home. You are booked into jail and prosecuted anyway.

When you think about it that way, why would anyone submit (unless they’ve literally had nothing to drink in the last twelve to twenty four hours)?

Given the above scenario, isn’t refusing to take the intoxilyzer actually evidence that you have not lost the normal use of your mental faculties?

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