Interviewer: What’s the penalty for refusing? Are there any additional penalties?
Gary: Yes, there is a penalty and where it affects you is on the administrative side, which determines your license revocation. In Texas, and most states, drivers operate their vehicles under the informed consent statute.
If you are stopped for suspicion of DWI and it’s a first offense and you’ve submitted to the required tests and failed, you are looking at a 90-day suspension. If you refuse the test or they have to get a warrant for a draw on you then it becomes a 180-day suspension.
In years past, when they weren’t doing mandatory blood draws why would anybody take a breath test? This was because you’re only looking at a driver’s license suspension of 90 more days after the fact. It actually benefited you not to take a breath test because it wasn’t that big of a sanction against you for a refusal.
Interviewer: Do you have situations where clients say I didn’t refuse the test, but they marked me down as having refused?
Gary: Yes, I’ve had that situation before but it usually turns out, watching the video that during the conversation they were so drunk that they didn’t know what was going on.
Interviewer: You mentioned video. Are all police stops videotaped?
Gary: Ninety percent of the stops in the San Antonio, Bear County area and in Texas are recorded through on-board cameras. San Antonio has a digital camera in their police cars that records all the police stops.
What they do is they pull you over and they will have you performing your field sobriety tests in front of the camera, and interviewing you in front of the camera as well. It always comes back and haunts them a little bit because 99% of the police reports indicate that the driver had bloodshot eyes, smelled of alcohol, and spoke with slurred speech. Then all of a sudden on the tape the defendant is speaking with distinction and clarity and the defense attorney now has a valid argument right there. “Well, where’s the slurred speech, officer?”
Video sometimes is good and sometimes is bed. It helps the case if the video does not reflect well on the client and it works to convince the client that they should take a look into a plea bargain agreement.
If the video is good then, you know, even though they may have blood draw, sometimes you can convince a jury that the client wasn’t drunk at the time and that designating a person as being drunk is science and science is always fallible.