Just because you are pulled over by the police in the state of Texas does not mean you are automatically guilty of a crime. Nor does being pulled over automatically mean your rights are suspended.
Every year, hundreds of thousands of people are pulled over by police on Texas roads. These stops are made for a variety of reasons. If you are ever one of these people, you need to remember that you still have rights if you want to avoid problems. This is particularly true where DWIs are concerned.
In this post, we’re going to cover what your rights are in the event you are pulled over by the police and what you should do. Remember that these are rights every single person has — regardless of why you are being pulled over — so it is important you understand them and exercise your rights.
Why Can Police Pull You Over In Texas?
Despite what you may be led to believe, police officers in the state of Texas cannot just pull you over for any reason. For a cop to pull you over, they must have what is called reasonable suspicion.
The textbook definition of reasonable suspicion is that a police officer must be able to cite specific reasons why they suspected a person of being in the commission of a crime or of having recently committed a crime.
Examples of this when it comes to traffic stops would be someone swerving around or otherwise driving erratically to establish drunk driving. Smoke coming out of a car window in a neighborhood known for drugs could constitute reasonable suspicion for the presence of illegal drugs.
At the end of the day, there are many reasons that a police officer can use to justify a traffic stop. So, because it is so easy for them to justify the traffic stop, it’s up to you to know your rights and protect yourself in the event you are pulled over unjustly.
When Can a Texas Police Officer Search Your Car?
In the event you are pulled over unjustly, remember that a police officer does not immediately have the right to search your vehicle. They will need what is known as probable cause before they are legally allowed to do so.
Probable cause could be something like the smell of marijuana in your vehicle. Other instances of probable cause could be the strong smell of alcohol on your breath, bottles of alcohol in your vehicle, or a drug dog alerting the officer to the presence of illicit substances. If an officer does not have probable cause, then you have the legal right to refuse a search of your vehicle.
In the event that an officer does search your vehicle, you have the right — and the strong recommendation — to remain silent. Anything you say can be used later by the arresting officer to help prove their case. An example of this is if you are speaking erratically and slurring your speech. It is better to remain silent and say only what you are required to the officer.
Remember that you also have the right to refuse things like field sobriety tests. If you do refuse, you will be required to sign an evidence sheet stating that you refused. This can be later used to help establish guilt. So, even if you do refuse, remember to remain silent and comply with the officer so that you have a chance of fighting any charges later in court.
By remaining silent you are preventing the police officer in question from collecting any further evidence that can be used against you. This can be incredibly helpful in a wide range of cases, including driving while intoxicated, possession of a controlled substance, weapons charges where you are accused of having an illegal weapon, and so on.
If you remain silent and compliant, it will be much easier to build the strongest possible case. If any of your rights have been violated, you will also stand a much better chance of having your charges dismissed or being found not guilty.
The main thing to remember is that you have rights, and it is your responsibility to exercise them. The police will be expecting you to make mistakes. Always remember your rights and always remember to exercise them if you are ever pulled over.
What Not to Do If a Texas Cop Tries to Pull You Over for DWI
Getting a Texas DWI is a big deal, but there are far worse situations you can find yourself in. Recently, a man tried to avoid getting pulled over for a DWI by leading police on a high-speed chase and got a lot more than he bargained for.
Rueben Prado Vargas, 28, was arrested on several counts after allegedly refusing to stop when a police officer pulled him over for suspected drunk driving. Vargas reportedly fled the scene in his vehicle, racing at high speeds and leading police in a chase through Carrollton and Dallas.
Eventually, he allegedly crashed into a parked patrol car, which injured an off-duty police officer sitting in the vehicle. Vargas was said to have fled the crash scene on foot and attempted to carjack another driver at knifepoint before his arrest.
As you might imagine, his situation now is far worse that it would have been if he was just facing a DWI. Instead of running from a possible DWI, let us help you fight it through legal methods. There are all kinds of ways to beat a DWI charge, but fleeing the scene isn’t one of them.
Below, we’re going to detail other things you shouldn’t do if you’re pulled over by a cop, explain the DWI laws in our state, and go over defense strategies that you can potentially use.
What Not to Do
Vargas would have been much better off cooperating with the police. Here are some guidelines on what not to do if you are pulled over for suspected drunk driving.
Don’t argue with the police.
A police officer must have reasonable cause to pull you over and arrest you on charges of driving while intoxicated. In some situations, however, the officer may not be justified. Even if you feel like you are being unfairly targeted for your age, gender, ethnicity, or race, though, it’s better to cooperate and work with an attorney later to get the charges dropped.
Don’t press for information.
Your arresting officer is required by law to read you your Miranda rights when you are arrested. If you did not hear phrases like “you have the right to remain silent” and “you have the right to an attorney” when you were arrested, this can help your case down the line.
Don’t refuse a breathalyzer test.
You may not want to take a blood alcohol content test for any number of reasons, but here’s why you should agree to it.
Breathalyzer tests are notoriously unreliable. The equipment must be properly calibrated. The officer who administers the test must be trained in how to use it correctly. The test results often vary based on different factors, including certain medical conditions or the presence of specific substances like mouthwash. An experienced Fort Worth DWI attorney will attack BAC test results from a variety of different angles to call them into question.
Another reason to cooperate is that your license may be suspended for 180 days if you refuse. It’s better to cooperate and keep your freedom than lose it at the scene.
Don’t escalate any conflict.
If the police officer treats you with disrespect, intimidation, or any other inappropriate conduct during the time of your arrest, the evidence against you may be inadmissible in court. Don’t add to the problem by fighting back or yelling insults. Police officers are required to follow protocol, and if they fail, you shouldn’t have to face charges if you didn’t retaliate.
Don’t flee the scene.
As we can see from the example above, the charges will stack up against you if you try to resist arrest. Vargas may face more charges related to injuring an officer and carjacking, in addition to resisting arrest and DWI. That may mean longer sentencing and higher fines if a conviction occurs. It’s better to stay put and let the events play out than creating a bigger legal nightmare by fleeing the scene.
DWI Laws in Texas
In Texas, you can be arrested for driving while intoxicated if your blood alcohol concentration is 0.08 or higher. You can also face arrest for impairment due to using other controlled substances.
A first offender will spend between three days and 180 days in jail, pay a fine of up to $2,000, and lose their driver’s license for up to one year. Another fee between $1,000 and $2,000 will apply to retain the driver’s license.
Subsequent offenses will lead to longer incarceration times, higher fines, and longer loss of driver’s license. Two or more DWI convictions in five years will require the installation of an ignition interlock switch on your vehicle.
If you are facing DWI charges, you must contact a skilled attorney as soon as possible. Get in touch today for a free case review.
You’re Arrested for DWI in Tarrant County – What Happens Next?
So, you’ve been pulled over and arrested for driving while intoxicated. Whether you made an honest mistake or know that you were still capable of being behind the wheel, you want to fight your charges.
After all, the penalties for DWI in Texas could cost you thousands and prevent you from driving for an inconveniently long time.
Texas has specific laws and deadlines attached to the process of fighting a DWI charge. Make sure you are meeting these deadlines and taking the next steps with a criminal defense lawyer to give yourself the best chance at getting a reduced sentence – and possibly even have your charges dropped entirely. Remember – a charge is not a conviction. You have the chance to get through this process without any serious penalties.
Requesting a Hearing
If you are afraid of temporarily losing your license due to DWI charges, it’s time to act. Texas allows people who have been arrested for DWI a mere 15 days to request a hearing. If you get your request in on time, you can continue to drive without any consequences. Your hearing will not be immediate, so you have time to prepare.
Reaching Out to a Lawyer
At your “first appearance” hearing, the district attorney will ask if you have counsel. If you want to reach out and hire an attorney, it’s best to do so as soon as possible. Your lawyer can represent you at the first hearing, and you may have already figured out what defense strategies you will use in court.
“First Appearance” Hearing
During this hearing, the district attorney will collect relevant evidence from prosecutors, including chemical test results. This information will make its way to your lawyer in about a month.
Basically, the first appearance sets your case up to be settled in court. The actual date of your trial may be determined in an “announcement” hearing.
Your lawyer may have to attend a handful of these hearings before your actual trial. During one of these hearings, you will have the opportunity to make your plea. It’s almost always better to plead “not guilty” – you can always change the plea to “guilty” later, but you cannot alter a “guilty” plea to “not guilty.”
Between the First Appearance and Trial
If you plead “not guilty,” it does not mean that you will automatically go to trial. Between the first appearance and your (possible) trial, your attorney will gather evidence and work with you to build your defense strategy.
You may, for example, argue that you were arrested against your constitutional rights. If you want your case to be heard in front of a jury, you may request that in another hearing. (There are reasons why defendants may or may not want to have their case heard in front of a jury. Talk to a lawyer about these reasons before you head to trial or file the appropriate motions.)
Throughout this process, your attorney will be negotiating with the prosecution and doing everything in his or her power to strengthen your case while weakening theirs. During this time, they may be able to work out a favorable plea deal for you, getting charges and penalties reduced. In some cases, it may even be possible to get your charges dropped or dismissed.
Most trials are heard in front of a jury. (Most DWI charges in Texas are misdemeanors, which means the jury will consist of six people. Felony charges are heard in front of 12 jurors.)
During your trial (if you have one), your attorney and the prosecution will:
- Provide opening statements
- Present evidence
- Call witnesses to the stand
- Provide closing statements
You are not required to testify, and you are not required to call up any witnesses if it won’t help your case. Once the case has been argued on each side, the jury will vote on their verdict and the appropriate penalties if you are found guilty.
If you are found guilty, you will have to serve your sentence after the trial. DWI penalties in Texas range from probation to the loss of your license to heavy fines. Investing in a skilled criminal defense lawyer can help you avoid these penalties.
Found “not guilty?” Great news. It’s important you understand that your legal matters may not be over yet, however.
Even if you completely beat your charges, they will still stay on your record if you do not take appropriate action. Since it is incredibly easy for pretty much anyone to gain access to your criminal record, this can negatively impact your ability to get a good job, find housing, qualify for a loan, and more.
Luckily, in some cases you can work with your lawyer to get your case expunged (also known as the process of “criminal record sealing”). This effectively erases your criminal record to all, but a few select individuals and offices (i.e., a landlord won’t be able to see that you had a record, but a judge will if you are charged in the future).
Think you’re ready for your case now? Think again.
While this is the basic shape most Texas DWI cases take, each one is a little bit different, and will depend upon your specific circumstances. Because of this, you need someone on your side who understands all the nuances of the law and can recommend the best course of action for you.
Should Texans Blow into a Breathalyzer If Pulled Over for DWI?
Most of us are familiar with the sinking sensation that comes with seeing flashing red and blue lights in our rearview mirrors. If you’ve been drinking even a little prior to your traffic stop or are stopped at a sobriety checkpoint, this apprehension multiples – and for good reason.
A Texas DWI can have life-changing consequences, even for a first offense. It can cost you thousands upon thousands of dollars in fines and may even cost you your job. It’s therefore important to know your rights if you’re stopped for suspected drunk driving, and to know exactly how to proceed.
Most Texans are under the mistaken assumption that they are required to submit to any form of sobriety testing. This isn’t true – you have the right to refuse some forms of testing without legal consequences but will face legal consequences for refusing other forms of testing.
Sound confusing? That’s probably part of the point.
Below we cover exactly what forms of sobriety and blood alcohol testing you should and should not consent to, as well as how to handle a traffic stop for suspected drunk driving in general. Being aware of your rights ahead of time could save you from untold grief down the road.
Reasonable Suspicion Versus Probable Cause in Texas
To pull you over in a traffic stop, a police officer only needs to have reasonable suspicion. This means that police can stop you for suspected drunk driving.
The legal definition of reasonable suspicion is a gray area, but the bottom line is that if police officer suspects you of something, it’s perfectly legal to pull you over. However, a reasonable suspicion traffic stop should only be temporary, allowing the officer a few minutes to briefly investigate the suspected offense.
To forcibly conduct sobriety testing or make an arrest, the officer needs probable cause or a warrant. This means that you have the right to refuse roadside sobriety and blood alcohol testing – and often, you should exercise that right.
Understanding Texas Implied Consent and Pre-Arrest Testing
Under our state’s implied consent law, you are required to submit to chemical blood alcohol test and will face legal consequences for refusing to do so. However, a portable breathalyzer administered prior to a lawful arrest is not subject to implied consent, nor are field sobriety tests.
In fact, the officer may ask you to take a voluntary “preliminary alcohol screening” test in order to establish probable cause to make an arrest for drunk driving. These voluntary tests include both blowing into a handheld breathalyzer and field sobriety testing.
Here’s the problem with agreeing to either of these tests: both are notoriously inaccurate. Studies have shown that even sober people often fail roadside sobriety tests, and portable breathalyzers commonly overestimate BAC levels – sometimes by up to 50%. Despite this, if you fail either of these forms of roadside sobriety testing, the results can and usually will be used as evidence against you in court.
In other words, even though they are known to be inaccurate, taking them gives the prosecution more ammunition to use against you. Because of this, it is generally not advisable to submit to field sobriety testing pretty much ever, because you can easily fail even if you’re perfectly sober. Breath tests are a bit different. If you absolutely know that you have no alcohol in your system, you should have no problem passing a portable breathalyzer test. However, if you have consumed any amount of alcohol – even, in some cases, things like mouthwash that may leave an alcoholic residue – it is not advisable to submit to portable breathalyzer testing.
What happens if you refuse? Just because you aren’t required to take either of these tests does not mean that consequences aren’t possible. Your refusal can be considered probable cause to make an arrest for suspected drunk driving. However, if an officer is asking you to take sobriety tests, the chances that they will arrest you are high to begin with – especially because the “results” of your field sobriety tests are based on the officer’s completely subjective opinion. At least if you refuse testing, the results cannot be used as evidence against you later.
How to Handle a Traffic Stop or Sobriety Checkpoint in Texas
Although you have rights that you can and should exercise if stopped by police, it is never advisable to be smug or belligerent. Be courteous, and answer questions with a simple “yes sir” or “no sir.” Absolutely do not say anything that could be used against you.
If you choose not to submit to roadside sobriety testing, politely refuse by saying “no thank you sir.” Also, be compliant in showing your license and registration, do not make any sudden movements, and keep your hands outside of your pockets.
Once under arrest, you will be asked to submit to chemical testing, which is ordinarily a blood test or more accurate breathalyzer. Under most circumstances you may also refuse chemical testing, although this refusal does come with specific legal consequences. Moreover, if you have committed intoxication assault or have two prior DWI convictions, this testing is mandatory.
Another difference? You have the right to speak to an attorney before submitting to post-arrest testing, and we advise that you do so if possible. You also have the right to be tested by an outside medical professional of your choice within two hours, which may be advisable.
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth. He has been recognized for his work by Expertise (Best Criminal Defense Lawyers in Forth Worth and Best DUI Lawyers in Fort Worth, both 2020), The National Trial Lawyers, Fort Worth Magazine, and others.