A legal fiction

Texas courts like to maintain this legal fiction that license suspensions following a breath test refusal or failure are just civil matters. As a result of that fiction, at a license suspension hearing, the attorney for the Department of Public Safety must only show that the arresting officer had probable cause to believe the driver was driving while intoxicated.

Since it is treated as a civil matter, double jeopardy does not apply. Unless one is found not guilty by a jury, the DPS can still suspend a motorist's license even if the DWI case is dismissed.

Since it is treated as a civil matter, a motorist arrested for DWI does not have the right to consult with an attorney before deciding whether or not to submit to a breath test.

But how does the following statement fit within that legal fiction?

"If you refuse to give the specimen, that refusal may be admissible in a subsequent prosecution. Your license, permit or privilege to operate a motor vehicle will be suspended or denied for not less than 180 days, whether or not your are subsequently prosecuted for this offense." -- DIC-24

A license suspension certainly sounds like a criminal sanction and this nonsense about a refusal being admissible in a criminal prosecution exposes this legal fiction for what it is -- a cheap end run around the 5th and 6th Amendments.

At the point an officer asks a motorist to submit to a breath test, that motorist is already under arrest for drunk driving. At that time the motorist is sat down in front of the breath test machine, he isn't free to leave. No matter his response, the answer is testimonial. That triggers the 5th Amendment. As being asked to submit to a breath test is a significant moment in a DWI investigation, that should trigger the motorist's 6th Amendment right to an attorney.

Would the presence of an attorney gum up the works? Yep. Might allowing a motorist to consult with an attorney before deciding whether or not to blow result in more informed decisions? You bet. Would the presence of an attorney reduce the intimidation factor at the station house? Without a doubt.

It's time to end this legal fiction in Texas. Either eliminate the civil proceeding or be honest and criminalize breath test refusals. But doing that might just expose the legal fiction for what it was.

The truth about the statutory warning

If you've been arrested for DWI a cop read you a statutory warning informing you of your rights under Texas' implied consent law.  The document you were handed was the DIC-24.  The form indicates whether the officer asked for a breath or blood sample and whether you provided the sample or refused.  The form also notes if you refused to sign after declining to provide a sample.

The DIC-24 begins by informing you that you are under arrest for driving while intoxicated.  So much for that lie that the officer will release you if you blow under a .08.  In reality, should your alcohol concentration be below the legal limit either (1) the cops will call in a drug recognition "expert" to determine if you are under the influence of any prescription drug, non-prescription drug or illegal drug; or (2) the state will argue that you were over the limit at the time of driving through a process called retrograde extrapolation.

A common theme in breath test refusal cases is that the mere refusal of the citizen accused to provide a breath sample is evidence of his guilt.  Not according to the DIC-24.  Per the statutory warning, a refusal may be admissible at trial.  The citizen accused's refusal is just one more piece of evidence at trial -- and I argue that it's evidence my client wasn't intoxicated since it showed that he or she was aware that their cooperation with the police only got them deeper in the mire.

  

In short, if you're being offered a breath test you are already under arrest and by blowing in the state's breath machine you are handing the state evidence to use against you.

If you've been arrested for DWI, contact my office now with any questions you may have.