**Asking to consult a lawyer is a breath test refusal!***Just FYI***

[WetVelvetSAT]

Hi,

Did you know that? I sure didn't ...aheheheh

Most people believe that since they are being asked a question (i.e. “Will you take a breath test?”) that they have a legal right to talk to a lawyer before answering the question. Unfortunately that is not the case.
In fact, insistence on speaking to an attorney before making the decision will lead the officer to mark on the DIC paperwork that you refused to take a breath test. This legal analysis was upheld in Texas Dept. of Public Safety v. Raffaelli, 905 S.W.2d. 773:

http://dwi.austindefense.com/2007/01...-test-refusal/

Be safe out there and have fun!

Sincerely,
Wet

[JONBALLS]

In New York, they have a "prescreen" device they want you to blow into if they feel they detect the presence of alcohol.This is a little plastic device, its not the actual breathalizer.I had never heard of that before untill they were shoving it in my face as soon as I stepped outta the car. They were coming at me and I was backing up saying whoa whoa up there , what the hell is that! Ohhh, thats just tests for the "presence" of alcohol.Yah rrrrrrrriiiiiight,..I said , what happens when I refuse this? they say, we just give you a ticket.I say, well, give me a ticket then.So they take me to the next step, which is the road side test, which I passed , they decided I was ok, and didnt make me blow into a breathalizer, and let me drive away. 6 months later, my insurance got cancelled for a DWI on my driving record. I was never arrested, convicted or anything.That ticket cost my premiums to rise from $550. per year to $2500. per year. DWI is HUGE business in NYS.The troopers LOOOOOOOOOOOOOOOOOOOOOOOVVVVVV VVVVVVEEEEEEEEEEEEEEEE, the overtime, If their really agressive it can raise their salaries as much as $35000.00 per year and the insurance companies get it on the back end, I got it shoved up my ass..And yes, I did try and reduce that ticket down with the DA and his answer to that was that the judge I was going in front of NEVER, pleads down a ticket that is alcohol related. So, maybe hiring an attorney and spending more money would have helped, eigher way, crock of shit..When you do get pulled over, you answer NO, to all questions about weather you drink, anything they ask you is used as evidence and you dont have to say anything.always be calm and polite, but you never have to elaborate no matter how much they degrade and badger you .remain silent.

[jframe2]

Very accurate information from both posters.
Basically, driving is granted/authorized by the state to each individual that meets the requirements to get a license. And we all know that what the State gives, the State can take away. Driving falls under Administrative law and not Criminal Law.

The short of this is that you come off better refusing all tests and get through the arrest and booking. Your license gets suspended per Administrative Law Statutes, but the Cop should give you a receipt for your drivers license. I think some states allow you to drive on this Receipt up to 24 hours past your first court hearing.

Get a lawyer and then you get an Administrative hearing: here you can explain why you need your license back ( work, family obligations, etc). In most cases the Admin law judge will grant you a temporary license. You can not pay the fines if you are not working and the State, she wants her money!!

Then you get to take on the DWI, DUI charge that you may have as a result of the whole mess. The days of pleading down DWI/DUI charges are pretty much over, but if your attorney thinks it is possible go for it.

If it is a first pay the fines, take the Diversion that will probably be offered and get it expunged at the first opportunity.

Be safe and Play hard!

[JONBALLS]

Originally Posted by jframe2

Very accurate information from both posters.
Basically, driving is granted/authorized by the state to each individual that meets the requirements to get a license. And we all know that what the State gives, the State can take away. Driving falls under Administrative law and not Criminal Law.

The short of this is that you come off better refusing all tests and get through the arrest and booking. Your license gets suspended per Administrative Law Statutes, but the Cop should give you a receipt for your drivers license. I think some states allow you to drive on this Receipt up to 24 hours past your first court hearing.

Get a lawyer and then you get an Administrative hearing: here you can explain why you need your license back ( work, family obligations, etc). In most cases the Admin law judge will grant you a temporary license. You can not pay the fines if you are not working and the State, she wants her money!!

Then you get to take on the DWI, DUI charge that you may have as a result of the whole mess. The days of pleading down DWI/DUI charges are pretty much over, but if your attorney thinks it is possible go for it.

If it is a first pay the fines, take the Diversion that will probably be offered and get it expunged at the first opportunity.

Be safe and Play hard!

thanks for this , very helpfull. The only other caviat I have is how they initially pulled me over. They pulled up to my right side rear fender at a stop light. When the light turned green , I proceeded ahead and they raced up the right side to my door and let off the gas as to act as though they were racing me.I didnt bite cause I knew it was a cop, but as we traveled farther down, they kept doing it , two and three times till the road turned into a single lane. the whole time I knew it was a cop and kept to the 35 speed.They laid off a bit , then lit me up and pulled me over. When they got to my door, there was two NYS Troopers, one of them was being trained by the other on how to do a traffic stop.They told me they clocked me at 57 in a 35 and they said they came from the OTHER DIRECTION, in other words, lied , and said we were going in opposite directions!! unbelievable and scary what a police state NY has turned into. Bold face liars, real dissapointing.

[jframe2]

If you feel that strongly that LE is lying, do some strategy and see if you can challenge their claims.
- get a lawyer. did I forget to say, get a lawyer. Oh and by the way, you need a lawyer.
- get all the reports related to this and review them very carefully for differences between your version of events and their version of events. specifically ask for any in-car video or video taken during the booking process;
- get a good terrain map of the road you were on; google earth, etc. Look for geographical problems with their story ( hills or curves in the road, trees blocking views, etc.
- drive the route in question from your perspective and video and/or audio tape it giving commentary as you go by things. I would start approx 5 miles before they pulled you over.
- drive the route in question from LE perspective, see above;
- ask for the radio calls for the LE from the beginning of his shift until you were pulled over. Compare this to your map;
- if you go to trial, request all public records on both LE. gives you an idea of how they have interacted with the public in the past;
- make sure that whoever operated the machinery used to determine you were dui/dwi were trained, were up to date on their training. Make sure the machines were uptodate on their maintenance;
- the weakness at trial is the rookie LE, he may buckle when he is confronted and has to choose under oath if he is going to lie or not;

Oh and did I mention a lawyer would be well worth the money for this?
Good luck,

[ShysterJon]

The underpinning for the court's holding in DPS v. Raffaelli are two cases from the Texas Court of Criminal Appeals from the late 1980s which held that a suspect has no right to confer with counsel on the decision whether to give breath because "the time at which an accused is faced with the decision of whether to submit to a breath test is not a 'critical stage' of the criminal process which necessitates either the prior consultation or presence of counsel...." McCambridge v. State, 778 S.W.2d 70, 72 (Tex. Crim. App. 1989) (quoting Forte v. State, 759 S.W.2d 128 (Tex. Crim. App. 1988).

I differ with the court that the decision of whether to give evidence that could be used as prima facie proof of guilt or non-guilt regarding an offense for which a person can be jailed for 180 days is not a "critical stage" of the criminal process. But this is still the law in Texas, for bad or good. It's bad an American can't talk to a lawyer whenever they want to be informed of their rights, but I guess it's good from an efficiency standpoint. Preservation of rights always seems to create inefficiency. The courts should just make it clear that any invocation of the right to counsel by a suspect should bar the police from continuing to question a suspect, which is a basic doctrine in criminal law.

My advice to my clients is, if you have consumed any alcohol within 12 hours of being asked to give breath, then refuse to give breath. If you haven't had a drink within 12 hours, blow away. Of course, with only a handful of exceptions, every client I've had with a DWI case in 25 years had consumed alcohol near the time they were stopped. The problem is the client who had been drinking but who wasn't falling down drunk thinking their blood-alcohol content was below 0.08 and that they can "beat" the breathalyzer. Those are the clients who are surprised and chagrined when they blow 0.08 or 0.09.

So my rule, restated simply, is:

DON'T BLOW!

Originally Posted by JONBALLS

When you do get pulled over, you answer NO, to all questions about weather you drink, anything they ask you is used as evidence and you dont have to say anything.always be calm and polite, but you never have to elaborate no matter how much they degrade and badger you .remain silent.

I agree with nearly everything you wrote, except the part about answering "no" to every question. Under Texas law, a driver during a traffic stop is required to produce their valid driver's license and proof of insurance -- that's it. The driver doesn't have to give any other information or answer any questions. So why lie and answer "no" to a question when you don't have to say anything? Just STFU. What I do when I'm being questioned by LE is I cock my head a little, smile, and say nothing. Try it some time -- it works.

Originally Posted by jframe2

I think some states allow you to drive on this Receipt up to 24 hours past your first court hearing.
* * *
If it is a first pay the fines, take the Diversion that will probably be offered and get it expunged at the first opportunity.

The law is a little different in Texas. When a driver's license is confiscated for a breath or blood test refusal, the officer gives the driver a temporary driving permit that's good for 40 days. On the 41st day, the 180-day suspension period begins.

Also, records regarding an arrest for DWI cannot be expunged or sealed in Texas unless the case is dismissed or the defendant is acquitted at trial.

[JONBALLS]

JFRAME, thanks again for the info.On that particular night, they did send me off with the speed tickey and the refuse breath test..I drove away.It was 3am, and we were the only two cars on that road.I think that played into partly why they let me go, it probably would have been easy to prove their direction.I really was most disappointed that they would lie like that, what was the point of it?For the most part was always a fan of the troopers.

[JONBALLS]

I agree with nearly everything you wrote, except the part about answering "no" to every question. Under Texas law, a driver during a traffic stop is required to produce their valid driver's license and proof of insurance -- that's it. The driver doesn't have to give any other information or answer any questions. So why lie and answer "no" to a question when you don't have to say anything? Just STFU. What I do when I'm being questioned by LE is I cock my head a little, smile, and say nothing. Try it some time -- it works.
[/quote] Thanks for the info also. As to the lie..I have to quote George Costanza from seinfeld..." its not a lie , if you believe it"..LOL!...actually, you may exert more confidence, I assume you are an attorney, thats a gift alot of attorneys have. I actually feel I can be polite with a "no", confidently, and theres no where else to go with that answer.Also, living in New York, we have turned into the road block capital of the nation, for dwi, inspections, registrations..you name it, and when I come apon one of them, a simple "no" answer has always had them waving me through.Its just a comfort thing for me that has worked.Also, I cant be completely silent, I have a conceiled carry permit and have to disclose that.I have to give them credit, when they ask you about weapons and you tell them you have a permit, its always been met with a, just let me see the permit, dont show me the gun.They have always been respectfull of that.Im not a big drinker anymore , maybe 1 or 2 at most, I dont chance it, but still not going to blow, usually pass the roadside test with flying colors..much thanks ShysterJ.....

[WetVelvetSAT]

Hi,
ShysterJon....do you respresent clients in various counties? I need help!

jframe2..............I am going to copy and save your information...I was so naive....but that is great advice ...I don't have any proof nor did I have anyone to help with this matter....

Remember ladies when these guys ask you to visit their county most will not help you, if something goes down.... so make sure you have someone in your home city that has access to a lawyer and out town bondsman, especially, if you driving your own vehicle! (The lesson I learned... catch the bus, if I do ever leave my city again!)

HELP!....
P.S. I deleted most of the post because I felt that was to much information for the "internet." but I would enjoy hearing from the ones that do know what I said by pm, please!


-----------------------------------------------
In Texas, the legal limit for intoxication is .08 BAC. If an officer thinks your driving is impaired, you can still be stopped and arrested for DWI regardless of your BAC. Penalties get worse with every DWI offense.

http://www.texasdwi.org/

Sincerely,
Wet

[jframe2]

ShysterJon, Glad you could chime in with the TX specifics.
I wanted to try and help the OP out with some information he could work with, but I had to keep it rather general in nature.

If you are a certain age have you ever heard the one - guy from out of state is driving out in west texas and is lost. Stops at a gas station and an ol timer is sitting on an empty coca-cola crate. Asks the old timer for directions, old timer responds, "Well you go down this road for about a six-pack, then stop at the store and get another sixpack. Turn right and go about 3 cans and there you are."

My Lubbock Uncle swears that is how they used to give directions back in the day.
Be safe everybody.

[DFW Airwold]

OK I have a question relating to this from another viewpoint. I dont ever drink. When I do, it is usually 1 drink & that is when I am on a Cruise Ship. I have always worried about getting pulled over late at night when I have been working & being accused of being DRUNK. Since I know I have had NO ALCOHOL whatsoever, should I go ahead & submit to a Breathalyzer or demand a Blood Draw. Also 1 cavet to this is I am diabetic & usually have HIGH Blood Sugars. Some info/advice would be appreciated.