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Can You Take the 5th in a Civil Lawsuit Arising from a DWI Accident?

Updated: Feb 12, 2023 @ 7:55 pm

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When a drunk driving accident causes injuries to a third party, the driver faces not only likely criminal charges, but also a potential civil lawsuit from the victim. This can put the defendant in a difficult legal position. After all, any testimony offered in defending the civil case could conceivably be used against the defendant in their criminal trial.

Court Rules Defendant Not Required to Answer Civil Discovery Requests

Fortunately, the Fifth Amendment’s protection against “self-incrimination” applies to civil cases as well as criminal. In other words, you cannot be forced to answer questions in a civil deposition or lawsuit that might serve to incriminate you in a separate prosecution brought by the state.

Case Overview

The Texas First District Court of Appeals here in Houston recently addresses the scope of this Fifth Amendment privilege. A defendant in a civil lawsuit asked the court for an order to prevent him from having to answer discovery requests related to the underlying subject of the case, which was an auto accident. The plaintiffs are the estate and heirs of a man who died in the accident. They allege the defendant was responsible for the accident.

After the civil lawsuit was filed, the State of Texas separately charged the defendant with intoxication manslaughter related to the same accident.

Defendant’s Objections to Discovery Requests

Due to the criminal charges, the defendant objected to several questions presented by the civil plaintiffs in discovery. Specifically, the defendant refused to provide the following information:

  • The plaintiff was asked to identify all of the individuals and businesses who provided him with alcohol “within 24 hours of” the accident.
  • The plaintiff was asked to provide his mobile phone records, including any emails or text messages sent or received, from the day of the accident.

Trial Judge’s Ruling

In both cases, the defendant argued providing this information could provide prosecutors with valuable evidence they could use against him in the criminal trial. The judge rejected the assertion of privilege, however, and ordered the defendant to comply with the civil plaintiffs’ discovery requests. This prompted the defendant to ask the appeals court for a writ of mandamus–basically, an order overruling the trial judge’s instruction to comply with the discovery requests.

The First District’s Grant of Writ

The First District granted the writ. The appeals court agreed with the defendant that “it is likely that any information that relator provides in response to the two discovery requests would be used against him in the criminal proceeding.”

Indeed, even information from the defendant’s mobile phone records on the day of the accident “would provide the State with a link in the chain of evidence needed to prosecute [the defendant] in the criminal trial.” The defendant was therefore justified in asserting his Fifth Amendment rights.

Need Counsel for a Similar Legal Matter?

Contact a Defense Lawyer Today

A DWI accident can lead to a variety of legal problems for the accused driver. This is why it is critical to work with an experienced Houston DWI accident attorney if you find yourself in this sort of situation. If you need to speak with a lawyer right away, contact the Law Offices of Tad Nelson & Associates today.

Houston DWI Lawyer Tad A Nelson is Board Certified in Criminal Law by the TBLS.

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