License Revocation: The Cost of Not Submitting to a Sobriety Test

In follow up to my last post, here is a link to Warren Diepraam’s Article from the Texas Prosecutor’s Journal in 2007 describing the agenda of the No Refusal Weekend Initiative in Texas. Mr. Diepraam now works in the Montgomery County District Attorney’s office where he continues to make DWI prosecution a priority.

As the Superbowl approaches, I’m reminded of questions I’ve heard at every major sporting event, at every evening dinner party, at any place where people are congregating and drinking: You’re a lawyer? How do you beat a DWI? Should I blow?

The most obvious and correct answer is, “Don’t Drink and Drive.”

The next answer many attorneys online will say is don’t do any of the tests. There has been several discussions regarding whether or not the answering of the officers questions constitutes exercising your fifth and sixth amendment rights. A citizen has the right to remain silent and the right to an attorney after all. The thing is, they made this rule…

The use of a driver’s license in Texas is a privilege that comes with a cost. You have already consented to answer the questions of an officer detaining you for an investigation. The law provides that all drivers have given an implied consent to the taking of a sample of your breath or blood at the request of an officer merely as a part of the agreement surrounding your driver’s license.  If you refuse to provide that sample, there are consequences.  The Texas Department of Public Safety lists license revocation processes including:

Suspension Lengths:
 The offender’s license is suspended for failing the BAC test for:

• 90 days, if a first offender;
• One year, if previously suspended for failing or refusing the test or previously suspended for DWI, intoxication assault or intoxication manslaughter conviction.

The offender’s license is suspended for refusing the BAC test for:

• 180 days, if a first offender;
• Two years, if previously suspended for failing or refusing the test or previously suspended for DWI, or intoxication assault or intoxication manslaughter conviction.

If you do refuse to provide a sample, your license will be suspended for a period of time. If you refuse to perform the field sobriety tests, that refusal can be characterized as a consciousness of guilt at your trial. The prosecutor gets to tell the jury, “He knew he was drunk, that’s why he wouldn’t take the tests.”

Keep in mind that in most counties and jurisdictions the car behind you is recording your behavior. No matter what you think of your personal intoxication level at the time, be on your best behavior. The more rude or boisterous you are with the officer, the more the jury is going to presume that your attitude is due to how much you had to drink. Nothing destroys credibility faster than cursing the officer. (With the possible exception of flirting with the officer, juries can’t stand that. The better looking you  think  you are, the more the officer, and more importantly the jury, will despise you for your behavior and blame your poor social skills on whatever they believe you’ve imbibed.)

So, know your rights. Know that you don’t have to submit to the tests, but that there are consequences for that refusal. Remember you are on video. Imagine that your grandmother is going to watch your behavior that night. (In the last ten years, I can’t recall a jury without at least two people over the age of 60 on it.) Be polite, be courteous. ESPECIALLY if you’re going to refuse tests. Regardless of what you think the officer thinks of you, what matters is your impression on the jury. If it comes to that.

Learn more about the State of Texas license suspension process.