After downing vodka gimlets at a friend’s Super Bowl bash, Al Coholic gets behind the wheel of his shiny bimmer and carefully winds his way up Central Expressway.  Al travels a few miles before he notices flashing red lights in his rear view mirror and realizes that a police officer is pulling him over.  Al pulls to the side of the road and Officer Miranda Wright approaches his car and asks for his driver’s license and insurance.  After running Al’s information through the computer, Officer Wright returns and asks if Al has been drinking.  Al responds that he has had a “couple.”  Officer Wright then requests Al to take a roadside breathalyzer test.  Al is not sure what to do.  He is not sure if he has had too much to drink.  He is not sure if the breathalyzer test is accurate.  And, he is not sure what will happen if he refuses to blow.  Al asks if he can speak with his attorney and he is told “no.”  What should Al do? 

In Texas, a person is driving while intoxicated (DWI) if they have a blood alcohol content of .08% or higher.  (The term drinking under the influence or DUI is typically reserved for minors.)  The legal definition of intoxication can also be met if alcohol causes the loss of the normal use of one’s mental or physical faculties.  In Al’s situation, he is probably better off refusing to blow.  Al does not have the right to an attorney in deciding whether to take a breath or blood test, but does have the right to refuse the test.  Roadside breathalyzers are notoriously unreliable and inaccurate in measuring alcohol concentration and can provide abnormally high results.  If Al takes the test and it comes back at .08% or higher, the prosecution of his case has been made much easier.  Refusing to blow, however, will have consequences for Al.  Not only will the judge or jury be made aware of the refusal, but Al’s license can be automatically suspended for 180 days.    Under Texas law, Al may contest the automatic suspension within 15 days of his arrest.  If a hearing is requested within this time frame, Al may keep his license until a judge orders that it be suspended.

Tilting the Scales in Your Favor

Although we are not criminal attorneys, we are often asked “what should I do if I get pulled over after having a few beers?”  Obviously the best advice is to not drink and drive.  If you are going to drink, do so responsibly.  If you do get pulled over after drinking, it is probably best to avoid the breathalyzer as well as the physical and mental gymnastics that the officer would have you attempt (e.g. reciting portions of the alphabet backwards or forwards, one-leg stand).  Many of these exercises would be challenging to complete without a drop of alcohol.  Punishment for DWI varies depending on the number of convictions.  If Al is convicted for his first offense, he can expect a fine of up to $2,000, jail time of 3 days to six months and a suspended license for 90 days to 1 year.