The Law Offices of John S. Cossum
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Do I have the constitutional right to speak to an attorney before I have to take a field sobriety test?
In the State of Texas (and in the vast majority of the states), your right to an attorney or to advice of counsel does not attach until you are formally arrested or placed in "custody". If at any time during the officer's stop, you believe you need an attorney, I believe it is always good policy to ask for an attorney. Listen to what the officer says in response to your request for an attorney, this response could be very important if he misrepresents what the law is to you. This information could reflect upon the officer's credibility and could be used to impeach the officer at trial.

Should I refuse to submit to the field sobriety test?
You are not legally required to take a field sobriety test. If you believe you are sober, and can adequately perform the tests, take them, because the fact of your refusal can be taken as evidence of your guilt at trial. If you feel you may be intoxicated, politely refuse, as explaining your refusal in a sober state before a jury is far preferable to explaining why you could not pass a field sobriety test while claiming you were sober. Regardless, always be polite and courteous to the officer. If you are rude or become abusive or obstructive, the only person who is going to lose is you, not the police officer. You can certainly refuse the field sobriety test in a polite and courteous manner.

If the police officer asks me if I have been drinking, how should I respond?
If the officer asks you "Have you been drinking?", your answer will be a significant factor in the officer's decision to arrest you, and in the prosecution's case against you if you are charged and tried for drunk driving. Such questions are "accusatory" in nature and, unless the answer is two or three drinks, you should respectfully decline to respond in a polite and courteous manner. It must be remembered that the office does have a right to certain information, such as: What is your name?, What is your address, What is your date of birth. However, when the officer inquires into drinking, and the answer may incriminate you, ask for an attorney. While the officer may say you do not have a right to an attorney and ask you to answer the question. At this point, I think your best course of action would be to "respectfully" decline to answer. A good DWI attorney may be able to keep your response out of evidence or will be able to give the jury some other reason for you respectfully declining to answer the question.

Should I consent to a chemical test to determine my blood alcohol concentration?
In the State of Texas, as in almost all states, a driver is required to submit to a chemical test of his blood, breath or urine upon request of the police officer. The consequences of refusing to submit vary from state to state. In Texas, the following adverse consequences can occur:

  • Your driver's license will be suspended by the Department of Public Safety for 6 months to two years depending upon the circumstances and whether or not you have prior DWI convictions. This driver's license suspension will, in most cases, be upheld even if you are subsequently found not guilty of the drunk driving charge (it should be noted, however, that a chemical test showing a blood alcohol level over .08 will also result in a suspension, albeit a shorter one).
  • In the trial of the drunk driving charge, your refusal will in all probability be introduced by the prosecution as evidence of your "consciousness of guilt". Without a doubt, however, a competent criminal defense attorney will offer other reasons for your refusal.

The decision to refuse a chemical test is one not to be made lightly. If you believe that submitting to a chemical test will produce evidence of a high blood alcohol concentration, it is better, however, to politely refuse the test.

How many drinks will cause me to fail a chemical test?
The number of alcohol drinks you can consume without failing a chemical test will largely depend on your weight, body type, gender, food intake and the type of drinks you consume. For example, the more you weigh, the less you will be affected by each drink you consume. Additionally, the effect of alcohol intake is lessened by food. This is because the presence of food in the small intestine (where alcohol is absorbed quickly into the body) will slow down the absorption and therefore delay the effects of the alcohol. This slow down in absorption will also allow the body to eliminate a greater proportion of the alcohol consumed before it ever metabolized. Next, the higher the concentration of water in a human body, the more alcohol can be consumed without becoming legally intoxicated. As a result, because muscle holds more water than fat, a more muscular individual of the same weight as another individual will have a lower increase in BAC (blood alcohol concentration) for each drink consumed. For the same reason, women, who typically have a lower concentration of water in their body than a man of similar size, will be affected more by each drink consumed than will a man. For example, an average man weighing 160 pounds can consume four beers in one hour and still be under the "legal limit", while the typical woman weighing 160 pounds would be legally intoxicated. It should also be noted that the above example does not suggest a male of such size can drink four beers per hour, but only in the first hour. Thereafter, consuming more than one beer per hour would likely cause the same male's BAC to exceed the legal limit and cause him to become legally intoxicated. Finally, different types of drinks will have a greater effect on a person's BAC than others. While a 160 pound male can consume four beers in an hour without becoming intoxicated, four dry martinis would likely result in a blood alcohol level of over .15, almost twice the legal limit.

Which chemical test should I choose?
In the State of Texas, as in many states, the police officer will offer you a breath test, but you should be aware you may also request a blood or urine test. In many areas, urinalysis is no longer available. If one of the tests are not available, then you will have to select from those that are, i.e., if urinalysis is not available, then you are going to have to choose breath or blood. You do not have a right to choose urinalysis and then try to argue it's their problem that they didn't have it available. You will lose this argument. The officer will in all likelihood treat you as a "refusal" and all of the adverse consequences associated with a refusal will occur.

If you choose the breath test and fail it, ask the officer for a second test of either blood or urine so that your defense attorney can run an independent test to compare the results against the breath test. Even if this request is declined (which it likely will be), your request may be important to your defense. It is important to remember that if you are concerned that there may be any substance in your body, other than alcohol, then by all means select only the breath test and do not take any others.

The most accurate test is a blood test. The next most accurate test is breath. If you are reasonably sure of your sobriety, then choose the blood test. Alternatively, request a breath test and, if for any reason you "fail" it, ask for a blood test as a second test. If you are concerned about your state of sobriety, do not take any tests.

I have been charged with D.W.I. as a result of smoking marijuana or ingesting prescription or illegal drugs. Is my case hopeless because of the drug use?
Not at all. In fact, it will make it difficult for the State to prove a case against you if you pass a chemical test. As a result, make sure you chose a breath test when a sample is requested, as a breath test will not show whether or not you have ingested marijuana or other drugs in the hours prior to your arrest. As always, remain polite and courteous to the officer.

You need to understand the mechanics of the human body and how it processes marijuana. Your body converts "cannabis" into "THCs". The presence of THCs will tell an expert that you have smoked a marijuana cigarette 2 hours, 4 hours, 6 hours, prior to the taking of the blood or urine test. If there is no "cannabis" present but only THCs, the best an expert can testify to is that you had smoked a marijuana cigarette.

What will it cost to defend a D.W.I. charge?
The cost of defending a drunk driving charge varies greatly based upon the facts of the case. There are various factors that need to be considered: 1) Are there any prior convictions, 2) Can they be attacked or set aside on constitutional grounds? 3) Was the drunk driving charge a misdemeanor or a felony? 4) Was anyone injured? 4) Will the case require an expert witness? In addition to the foregoing, if a blood or urine test was submitted, an independent analysis of the blood or urine must be done. Whatever the results the District Attorney came up with must be verified not only to the percentage of alcohol to be present, but whether or not the sample was properly preserved and whether or not the sample has been contaminated in any manner. All of these factors are taken into consideration when discussing your case with you.

What is the punishment for drunk driving?
The punishment for drunk driving will vary. However, generally speaking, a first conviction will usually result in probation, a fine, community service, alcohol dependency evaluation and, if deemed necessary, treatment, participation in a "victim impact" panel, and a requirement that you attend a D.W.I. driving course. If there are any "enhancement factors" present, specifically an injury, even on a first offense, then a substantial jail sentence can be required.

or second or subsequent offenses, jail will almost always be ordered even if you receive probation. Your license will also likely be suspended and an ignition interlock device installed. In some rare cases, your vehicle can be impounded and/or forfeited.

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