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Guest Attorney: Clemente De La Cruz on DWI's

In Texas, there are approximately 100,000 DWI arrests a year. Drinking and driving is dangerous and no one should do it. But if you're unfortunate and get pulled over after a social drink or two, here are some helpful tips which can increase your chances of vindicating yourself in the event you are wrongfully accused of driving while intoxicated.

Respectfully decline the breathalyzer test.

These machines are not always accurate. Many factors can affect their accuracy. Although most citizens are informed that refusing to give a specimen of your breath will result in a 180-day driver's license suspension, you're entitled to a civil hearing in front of an Administrative Law Judge who determines whether the State can suspend your license. Your attorney will argue your case and you don't even have to attend this hearing. While your license can be suspended temporarily, giving a specimen of your breath or blood can often strengthen the State's case. You have a right to refuse to give a specimen except under a few circumstances. Without a specimen, your arrest is based on nothing more than the officer's opinion and everyone has an opinion-including jurors. An officer's opinion doesn't necessarily meet the highest burden of proof in our country-Beyond a Reasonable Doubt!

When asked to take a Standardized Field Sobriety Test (SFST), it's important to inform the officer of any medical conditions you have.

These can affect a person's ability to perform SFST's. The SFST is made up of 3 separate tests. First, in the "Horizontal Gaze Nystagmus," an officer examines a citizen's eyes and tries to detect nystagmus (an involuntary jerking of the eye as the eyes gaze toward the side). Some people are born with natural nystagmus. Other causes are brain tumors, brain damage, diseases to inner ear and more.

The second test is the "Walk and Turn" and many factors can affect a person's performance on this test. The test was designed in a controlled environment where the floor was level, the lighting was good, the temperature was comfortable, and there was no wind. A SFST can occur on a street designed to shed water, in the night with uncomfortable surroundings, like 18-wheelers passing by. Also, let the officer know about medical conditions that might affect your ability to perform the test, for instance, back problems, bad knees or other injuries.

The third test is the "One Leg Stand." The Standardized Field Sobriety Manual states that persons over the age of 65, people with back, leg or middle ear problems, or people who are overweight by 50 or more pounds have difficulty performing this test.

SFST's are almost always filmed and recorded. Most lawyers don't put their DWI clients on the stand at trial, so the recorded test is usually your only chance to explain anything which might have affected your ability to perform the test correctly, or why you refused to perform. Make sure to inform an officer of any medical conditions and remember, you still HAVE THE RIGHT TO REFUSE ANY OF THESE EXAMS and in my opinion, should.

If arrested, remmber you're being recorded the entire time-even when you're in the backseat of the police officer's car.

Exercise your 5th Amendment right. Our country does not require you to incriminate yourself. In fact, you have a right not to. Consult with a criminal attorney-preferably one who's been through the certification process to administer the SFST. The only way for an attorney to effectively cross-examine an officer on the SFST is to understand the administration of the test.

Most of all: BE RESPONSIBLE.

It's not a criminal act to have a cocktail at dinner and drive. To be intoxicated to the point that a person has lost the use of their mental and physical faculties is a criminal act and no one wants that on our streets!

Being arrested for a DWI is very unpleasant. So please, be responsible and remember these tips in the event you are wrongfully accused.

Clemente De La Cruz is a criminal defense attorney. He can be reached at 817-335-5050 or at 601 University Dr, Ste. 109, Fort Worth, TX 76107.

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