A Feisty Question About Refusing the Breath Test

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

But Officer, I Can't Do That When I'm Sober (A True Story)

Several years back I took the same class that police officers take to become certified to administer the Field Sobriety Tests. It’s not an impressive feat; I just did it to learn more about DWI defense.

The class was taught by Troy Walden and Lance Platt, two ex-police officers who, then and now, specialize in helping lawyers defend DWIs in Texas. It used the same manuals, and they themselves were certified Instructors, so it was pretty much identical in every aspect. (I’m tempted to say the students probably paid more attention than some officers do, but I can’t scientifically prove it.)

The three day class even included the part where we the students administer tests to some subjects before and after drinking. That’s right. They bring them in with nothing to drink. All subjects get the HGN, Walk and Turn, One Leg Stand. Then, while the students go on to some other rigorous examination of FSTs, the subjects sit at a bar and get dosed with alcohol.

In other words, someone sits there and buys them drinks. Then they come back and do the tests all over again.

I was reminded of this experience when my longtime friend and office mate, as well as fellow Austin DWI lawyer Lance Stott wrote this post about his experience as a guinea pig:

My role, difficult as it was, was to be a test subject, get drunk, and then take the tests again. It was a tough job, but somebody had to do it.

I’m a little bit clumsy by nature. I didn’t listen to the instructions all that well, and performing the tests in front a group of people gave me a case of nervers. Long story short: I bombed.

I took the wrong number of steps, started before I was instructed to, did the turn improperly, and I think I stepped off the line, as well. There are 8 clues on the walk and turn, and I think I got them all.

I was there. On the second day of class they had asked if any of us could bring in our friends to be subjects, so I asked Lance if he wanted to come, and he agreed. So I designated-ly drove him to and from the class. (Another lawyer brought a friend from one of Austin’s local “bars”; she scored terribly on the tests before and after.)

I don’t remember whether he got all eight clues, but I do remember he did terribly on the first – i.e. sober – attempt. I specifically remember him getting the number of steps wrong, even though I knew he knew it’s called the nine step walk and turn.

As an aside, I also remember that someone, not Lance, had natural nystagmus in one eye. Everyone ooohed and aaaahed, as that poor guy got HGN’d to within an inch of his life. Everyone had to see it.

Police officers, when asked about natural nystagmus, will pooh pooh it in that tone of voice that let’s you know only about ten people on earth probably have natural nystagmus, and all of them know it and will announce that before they have the HGN administered to them. Apparently one of the ten just randomly made it into our class. And, no, he had no idea he had visible nystagmus at all times in one eye. But I digress.

Back to Stott. How did he do after the trip to the bar?

The second time around, I did much better. I began when I was supposed to. I took the right number of steps. I touched heel to toe, and I even did the turn more or less the way you’re supposed to. (By the way, nobody ever does the turn right.)

What happened? Well, after my trip to the bar, I wasn’t the least bit nervous anymore. More importantly, this was my second time around. I’d had a bit of practice, and this time I knew what they were looking for.

Right again. That’s exactly how it happened. I was the witness. I don’t remember the second time around HGN results for him, but other than that, I think he got zero out of eight clues on the Walk and Turn, and either zero or one clue - a passing score - on the One Leg Stand after being dosed with alcohol.

Goodbye Retrograde Extrapolation for Breath Test DWIs?

In order of most to least common, the 3 basic defenses to DWI in Texas would be:

• Not Intoxicated
• Not Driving
• Not Driving While Intoxicated

I might be wrong about “Not Driving” being a more frequently viable defense than “Not While” but the third is still probably the least known to laypersons. The short version of the defense goes like this: Maybe there’s an accurate breath test over .08, but it’s barely over, and since the defendant’s BAC could have been rising between the time of the stop and the time of the Intoxilyzer results… reasonable doubt exists as to whether he was under .08 at the time of driving.

From an earlier post, DWI and the "While" Defense:

The point is that having a BAC of .085, for example, 30 to 45 minutes after the driving, does not in and of itself prove that the defendant was driving while intoxicated.

Depending on various factors, primarily the particular drinking pattern that night and the stomach contents, it is possible for the Defendant’s BAC to be higher at the time of the test, than it is at the time of driving. It is also affected by variations in human physiology as well.

This is most likely in scenarios where the defendant’s last drink was very near the time of driving; which - given what often happens at closing time - is not an unlikely scenario at all.

This isn’t just some crazy DWI defense lawyer theory here either – it’s both basic common sense, and basic science. So basic, that even the CMI manual for the Intoxilyzer 500 (used for breath tests here in Austin) admits that the defendant’s actual breath alcohol content at the time of the test may be “higher than, lower than or the same as” the BAC at time of driving.

So what’s the State to do when confronted with common sense and basic science telling them that “over .08” is sometimes “less than .08”? Change the rules, that’s what.

Proposed House Bill 170 attempts to ruin two of my favorite statutes (Code of Criminal Procedure 38.22 and 38.23) by following them up with a new section 38.24:

Article 38.24 Evidence of Alcohol Concentration

(a) In this article, “offense relating to the operating of a motor vehicle while intoxicated” and “offense of operating a watercraft while intoxicated” have the meanings assigned by Section 49.09, Penal code.

(b) For purposes of the prosecution of an offense relating to the operating of a motor vehicle or watercraft while intoxicated, it is presumed that the person had an alcohol concentration equal to or higher than 0.08 at the time of the offense if that level of alcohol concentration is shown by an analysis of the specimen of the person’s breath, blood, or urine taken from the person not later than 90 minutes after the time of the person’s arrest.

Retrograde extrapolation is the mathematical/scientific process by which an estimated BAC range for the time of driving is deduced/guessed by taking the BAC at the time of the test, the time since driving and other factors. These factors include when the suspect drank his last beer, .eg., to his last meal, and other considerations.

These are ultimately unknown factors no matter what the pre field sobriety test interview question and answers reveal from the defendant. And therefore, there’s room for some of that old reasonable doubt defense attorneys like to try and raise.

Since this is potentially a problem for the prosecution, they want to write into the law an unscientific instruction that allows them to argue that any test over .08 given within an hour and a half of driving automatically gives them a presumption of guilt. Since it’s unconstitutional to have an irrebuttable presumption in favor of the State in criminal cases, this proposed legislation can’t eliminate all tricks from the DWI lawyer’s bag, but it’s a start in the wrong direction.

After all, are they going to change the title of the offense to “Being Intoxicated After Driving”?