Attorneys of all stripes seem to know that volunteering evidance that may be used against you is a risky proposition, as SRothstein so ably described earlier in this thread. They would rather "take the ride", fight at the ALR hearing, or insist that a blood draw warrant be issued than provide anything that might cause them to lose not a battle (being arrested), but the war: the DWI charge. To be fair, I'm sure examples of the opposite answer can be found too, but my unscientific sample of attorney behavior/responses is that they refuse.
To our fine LEOs on the board let me say that I'm not endorsing DWI. As has been demonstrated by this thread, whether a driver voluntarily provides evidance or not, part of good police work involves documenting everything so that a jury can have as much information as possible about the circumstances. There's always has been and probably always will be some tension between law enforcement and preservation of civil rights. I suspect that most people want drunk/seriously impaired drivers off the road but don't want the person who truly had 2 beers with dinner to be hassled for 45 minutes before being allowed to continue on their way.
I am not a lawyer, but my understanding is that your friend is right in that Texas has a two part definition for DWI: =>.08 BAC OR where normal use of facilities is impared (I'm summarizing, not quoting the statute). The second part most often arises where drugs are the intoxicant but it can and has been used where the BAC is < .08. Imagine a situation where it is 3:00 am, a person had been partying and has sobered up substantially from where they were, is now slighly below .08, but is very tired and driving home. If they are weaving all over the road and nearly falling alseep at the wheel, as evidanced by video from a patrol car dash cam, I wouldn't be surprised to see a DUI charge and have it stick.
SA-TX
VMaxer wrote:A couple of buddies asked me to go out with them for some adult beverages the other night, and given that I'm going through a lovely divorce right now - I decided I needed to go. So, not wishing to mix firearms and alochol, I left my weapon at home and headed out.
Four hours (and two beers) later, I headed home.
Shortly after leaving, got pulled over by Dallas PD. I did the right things...car off, window down, dome light on. Gave him by DL/CHL and proof of insurance. He asked me if I had my firearm with me, and I told him no. He said, "Good."
He indicated I had a brake light out, and that's why he pulled me over.
When asked if I had been drinking, I (stupidly?) told him about the 2-beers. He came back from his car and wanted to give me a field sobriety test. I complied. It was quick, and I easily passed. He sort of dismissed me with a laugh and said, "Get back into your car." He thanked me for being cooperative and let me go on my way.
Reflecting, and after doing some online research, I have since wondered about the appropriateness of an affirmative answer to the question about drinking. I'm a big believer in the, "Don't talk to the police," mentality. But, I believed, in this case that my BAC was indeed well below the statutory limit, and that was my absolute defense. Not so, I have subsequently learned.
Some lawyer friends (from another state) told me that I can be cited for DUI even if blowing a BAC level less than the law allows, if the officer believes I am impaired and not safe to drive. So, if you're one of those that doesn't drink much or often, you can seemingly incriminate yourself with being really bad at walking a straight line (or whatever in your test), regardless of your BAC.
If that's correct, how in the heck should one answer the, "Have you been drinking tonight," question?
