There is no uniform answer as to what is best, because every situation is different. Obviously, it is helpful to remain polite and courteous with the arresting officer, but this does not necessarily mean you should submit to all of his or her requests. You can deal with the situation better if you know what to expect, what rights and choices you have, and the potential consequences of your decisions. The following outline tells you what to expect in a typical scenario:
If an officer suspects you of driving while intoxicated, he will question you on the roadside about your recent alcohol consumption, what food you ate, where you were, and where you were going. Expect the officer to audio/videotape the entire encounter. Most police cars have video cameras mounted in the front interior of the vehicle. The cameras can swivel to film what occurs in front of and to the side of the car. The officer arresting you will likely position the camera to record you as you are transported to jail. Most officers are equipped with remote microphones that can record your entire conversation from the initial roadside encounter to their parting words with you inside of the jail. Be mindful of this and guarded in your statements.
Though you must answer questions about your name, age and identification, you can refuse to answer any other questions. If you believe that you can present evidence favorable to your case by complying with the officer’s requests, you should do so. If you have any doubts, though, you should request to speak with an attorney before answering any questions. Make the request clearly and unequivocally, but politely. If the arresting officer is following proper procedure, they will terminate the interview whenever you request to speak with an attorney. If the officer fails to do so, continue to ask to speak with an attorney first and refuse to answer questions except for those about your identity.
FIELD SOBRIETY TESTS
In most DWI investigations, the officer will ask you to perform a series of sobriety tests. You can refuse to perform field sobriety tests. The officer can also ask you to take a breath test. You have the right to refuse these tests, though that refusal may later be used as evidence of your guilt.
You do not have the right to refuse to be videotaped, but you may refuse to perform the sobriety tests. If you believe that you can preserve evidence favorable to your case by complying with the officer’s requests, you should do so. You should be cautious though and if you have any doubts, you should request to speak with an attorney before submitting to the tests. When you ask to speak with an attorney, the officer should end the interview. If the officer continues, keep asking to speak with an attorney and do not submit to the tests.
ARREST & TRANSPORT
If the law enforcement officer thinks that you are guilty of an offense, he or she can arrest you. Typically, he or she will handcuff you and take you to jail. Remember that you are probably being recorded as you ride to jail. At this point it is unlikely that anything you say will change that; however, how you handle yourself may make the difference between being convicted or acquitted. It is always best to remain polite and respectful. Though you should cooperate with the arrest process, limit what you say and do not allow an officer to pressure you into admitting guilt.
BREATH & BLOOD TESTING
At the jail, officers will probably ask you to submit to a blood or breath test. Unless you had an accident and caused a life-or-death injury, Texas law says you may refuse to submit to breath or blood testing. Breath tests to determine body alcohol concentration are not always reliable. While state-paid experts routinely testify that the Intoxilyzer 5000 is accurate and reliable, several independent experts disagree. Consequently, the results may be inaccurately high or inaccurately low. If you have any doubts about your ability to pass the test, don’t submit to it before you talk with an attorney.
If you submit to a breath test and pass it, you stand a much better chance of winning your case. Sometimes, in fact, charges are not filed at all. If you submit to a breath test and fail it, you can later challenge the accuracy of the device at trial. However, you should realize that when you challenge a breath test, your trial becomes much more expensive because you need to hire private scientific experts to assist at trial.