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DWI Lawyer's Advice For Drunk Drivers Could Scare You Sober (Update)

sobriety test
DWI lawyers recommend you refuse a field sobriety test if you get pulled over, but even that course of action doesn't mean you'll avoid embarrassment and financial hardship.

Update: Austin Police have scheduled another “No Refusal” enforcement this holiday weekend, where a judge is on call to approve warrants for suspected drunk drivers' blood. 

KUT News checked back in with Austin DWI attorney Will Mitchell, who says that all of his advice below still stands. While the easiest solution is simply not to drink and drive, Mitchell offers the following advice to anyone pulled over: "Be quiet, don’t do field sobriety tests, don’t do a breath test, and refuse to give a sample of your blood. … Until you see a search warrant, there’s no reason for you to allow them to take your blood.”

And aside from the obvious danger, a DWI bust is still an expensive proposition. “Any number’s really arbitrary, but certainly the potential for it to run you, ten, fifteen thousand dollars is easily there.” 

Original post (Nov. 26, 2010): The holiday season is here, and that means it's time for the perennial news story about how the cops will be out en force to bust people who drink and drive.

We thought it might be more interesting to approach the story from the other direction and talk to a DWI lawyer about what to do if you get pulled over. Turns out the whole process should be scary enough to convince even the most hardened booze enthusiast to cough up cash for a cab.

If the cops can't convince you to drive sober, maybe local DWI attorney Will Mitchell can.

KUT News: What do you recommend people do if they're pulled over?

Will Mitchell: The first thing you have to do is remember that this is a police officer who can and is likely to take you to jail. You want to be respectful. You don't want to be combative or insensitive to the situation.

At the same time, you are being investigated for a crime. There's no mistaking that he is there to gather evidence against you and do whatever he can to make a case against you for DWI. The main thing is to always request a lawyer, and ask to have a lawyer with if you're being investigated for a crime. If you're not being investigated for a crime, then ask to be released so you can go on your way.

Of course, that's not going to happen. What's going to happen is you're going to be asked to step out of the vehicle. You do have to get out of a vehicle if an officer directs you to. What you do not have to do is answer his questions or perform his field sobriety test. We recommend you don't do those. The tests are designed for failure. You're not given the opportunity to practice. You're not given information what the officer is looking for until you do it. Then, as few as two clues out of eight or four clues is going to get you arrested.

We always tell people that refusing these tests is the smart thing to do to protect you from a prosecution down the road, keeping in mind the state has to prove you're guilty. You don' t have to prove your innocence. Without evidence of a field sobriety test, then the state's hurdle becomes harder to clear.

KUT News: What are the consequences of refusing a field sobriety test?

Mitchell: That's the dilemma that you're facing. Unfortunately at that point, your chances of going to jail are pretty up there. If you do the field sobriety test, you're going to get arrested because you're not going to pass it. If you don't do the field sobriety test, you're going to jail for refusing it.

It becomes a dilemma where, "Do I want to try to come home tonight, or do I want to protect myself from a DWI prosecution down the road?"

The bottom line is, if they just judged you on the way you talk normally, the way you stand and walk normally, then that would be completely different. But that's not the case. You're asked to walk heel-to-toe with your arms down at your side, and turn in a very peculiar fashion and then return down the same line touching heel-to-toe with your hands at your side, or to stand on one foot for 30 seconds. All the while, you've got cop cars around you. You've got traffic driving by. It’s not a real comfortable situation. Refusing the test is the way to go.

One thing I do have to say is you're looking at a driver's license suspension when you refuse the breath test. That's where you need to a lawyer in there to try to save your license from being suspended down the road. But if you blow over, you're looking at a driver's license suspension as well.

KUT News: What do you recommend your clients do during a "No Refusal" weekend?

Mitchell: First we have to understand what "No Refusal" weekend means. That doesn't mean you're not allowed to refuse the test from the police officer. You absolutely keep your right to refuse field sobriety tests, the breath test, and the blood test, even when they say it's a "No Refusal" weekend.

What happens when you refuse a breath test or you refuse to consent to a voluntary blood test, the police officers have to detail probable cause on a search warrant, and a magistrate has to approve it. Typically, the magistrates are City of Austin municipal court judges. Obviously if you do a field sobriety test, that's one way they can get probable cause. Odor of alcohol, admission to drinking, bloodshot or glassy eyes, sometimes that alone is enough to get probable cause, although I would certainly argue to the contrary.

Nonetheless, once the warrant is secure, they're then going to take you to a hospital. Most of the times they're going to take you to St. David's or Brackenridge. They sit you down and strap you into a chair and take your blood against your will. Sometimes they run the blood test there at the hospital, sometimes they ship it off to a DPS crime lab. Sometimes they do it at the APD crime lab.

I still advise people the same way. If you don't have to take the breath test, if you don't have to do the field sobriety test then you shouldn't. If they think they have enough probable cause to get the warrant, they're going to do it anyway. There's nothing you can do about it.

What we do then, is we take the warrant to court and we fight the warrant. In some cases we've been successful. In some cases we haven't.

KUT News: What is the cost of a DWI?

Mitchell: A lot of depends if you get convicted or not. Obviously, if you get convicted it's a lot higher. But if you get arrested for DWI, you're looking at $10,000 right off the bat. You're looking at lawyer fees, court costs, fines. Very rarely can a DWI be successfully defended for less than $10,000.

If you get convicted of DWI, the costs really aren't measurable. First of all, you're looking at DPS surcharges of $1000 per year for three years. That's if you don't take the breath test, and that's only if it's a first. And there are documented problems with the surcharge problem.

If you think about it in insurance rate increases, potential loss of future employment or loss of current employment, there's no telling how much a DWI will cost you.

KUT News: So it sounds like the bottom line is don't drink and drive.

Mitchell: I always tell people the safest thing is to have a designated driver or to take a cab because it's very risky. 

Nathan Bernier is the transportation reporter at KUT. He covers the big projects that are reshaping how we get around Austin, like the I-35 overhaul, the airport's rapid growth and the multibillion-dollar transit expansion Project Connect. He also focuses on the daily changes that affect how we walk, bike and drive around the city. Got a tip? Email him at Follow him on X @KUTnathan.
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