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When Is a Police Request for a DWI Breath Test “Coercive”?

Updated: Jul 9, 2023 @ 2:23 pm

Less than 1 minute Reading Time: Minutes

Texas is an “implied consent” when it comes to DWI. This means that if you refuse a breath-alcohol test when a police officer suspects you of drunk driving, your driver’s license can be suspended. But the officer cannot force you to give consent, although he may seek a judicial warrant to conduct the test.

Appeals Court Says Dashboard Camera Footage Exonerates Officer

It is important to emphasize that you have the right to refuse consent. Texas law enforcement officers are well trained in “convincing” drivers to agree to sobriety tests. Many of these techniques are perfectly legal, and even if one judge thinks the police stepped over the line, a reviewing court might see the matter differently.

This is precisely what happened in a recent DWI case from Austin. Following a two-car accident, a police officer questioned one of the drivers–the defendant in this case–on suspicion of drunk driving. The officer asked the defendant to submit to a “preliminary breath test” before taking an “official” test at the police station. The defendant agreed to the latter but not the former.

The officer later testified in court that he “retracted” the suggestion of the preliminary test “when he felt like his request might have been coercive.” However, he maintained the defendant consented to the official test at the station without hesitation or coercion.

The officer said he told the defendant that he would be free to go if the test showed a blood-alcohol level of less than 0.08 percent, the legal limit in Texas. (In fact, a person can still be charged with DWI even if they are below the limit, but the officer said he was unaware of that fact.)

The court also reviewed a police dashboard camera recording of the defendant’s interaction with the officer. In the recording, the defendant repeatedly expressed reluctance to take a sobriety test–at one point stating he was “nervous that I’m intoxicated.” But after repeated questioning, the defendant conceded, “I guess I should take it,” referring to the test. The defendant ultimately took the test and failed.

Coerced Consent?

The trial judge concluded the defendant’s consent was coerced and suppressed the results of the test. The judge cited the defendant’s earlier refusals as well as the officer’s misunderstanding of Texas law. Given all the facts, the judge said the prosecution failed to prove the defendant’s consent was voluntary.

A Texas appeals court disagreed. Reversing the trial judge’s decision, the Texas Third District Court of Appeals said “the testimony and video evidence establish that consent was not obtained through any improper physical or psychological pressure exerted by” the officer against the defendant.

The court said the recording, in particular, showed the officer “acted professionally” and “did not use harsh language or a demanding tone.” And the fact the officer misstated the law in Texas–i.e., the defendant would be automatically released if he passed the sobriety test–was not, in and of itself, enough for the appeals court to deem the defendant’s consent the product of coercion.

How Should I Handle a DWI Arrest in Houston?

Houston DWI Attorney Tad NelsonIf you are stopped by a police officer on suspicion of DWI, the best thing to do is say as little as possible.

Do not volunteer that you might be drunk.

And if you refuse a test, do so without getting into an extended discussion with the officer. You are not going to talk your way out of a DWI arrest. Instead, the best thing you can do is contact an experienced League City DWI defense attorney who can deal with the police and prosecutors on your behalf.

If you need to speak with an attorney about felony DWI charges, contact the Law Offices of Tad Nelson & Associates at 713-802-1631.

The Law Office of Tad Nelson & Associates

Houston • Clear Lake • Galveston • League City

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

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