DWI “No Refusal”: What Do You Do If You Are Stopped by the Police?

As a DWI attorney, I am often asked by people, “What do you do if you are pulled over by police and have been drinking alcohol? What about “no refusal” and blood tests? Should I do the SFSTs/roadside tests?” The best answer I have is to actually avoid drinking alcohol and driving. The problem we have in Austin and our state is that many citizens drink responsibly and drive. They want to have a glass of wine or two with dinner, drinks out with friends, a beer at the ball game. They want to enjoy a limited amount of alcohol and be able to drive themselves home without fear of being arrested. Unfortunately, those days seem to be over.

If a police officer pulls you over and smells alcohol, they will ask if you have been drinking and before you know it, they will have you out of the car performing roadside tests, ask you to blow in a portable breath test device and then place you under arrest for DWI. This often takes ten minutes from the time they reach your car window to the time they put you in handcuffs. If the portable breath test or the actual intoxilizer machine shows a reading under the legal limit, they will still arrest you and demand a blood sample for the purpose of looking for drugs in your blood. Guess what? If the blood sample comes back negative for drugs and with little or no alcohol reading, your attorney will get your case dismissed, but this can take upwards of six months while waiting for the lab to process it. You’ve still been arrested, paid for a DWI attorney, paid for your car to be released from impound and possibly spent money on a bond. Not only will you never see an apology for being wrongfully arrested, you won’t recover any money you are out either. It’s also difficult and cost prohibitive to sue the police. They arrest drinking drivers in droves here in Austin and across the state and with no consequences for arresting those who were drinking responsibly.

What do you do if you are pulled over by police and have been drinking alcohol? Most DWI attorneys, myself included, routinely tell people to avoid taking any and all tests. Why? Because there are serious flaws with the roadside tests, the portable breath tests, the intoxilizer/breath testing machines and with blood testing as well. While it’s true that generally speaking, you want to avoid giving the government evidence that they can use to convict you, when it comes to driving while intoxicated, DWI and DUI, the evidence you give is flawed and you will then fight an uphill battle (usually requiring a jury trial) to prove your innocence. This is why most DWI attorneys tell you to avoid taking the tests.

What about “no refusal” and blood tests? When you refuse to take all of the tests, they arrest you and take you to jail. With a “no refusal” policy by the police, the police go to a judge and give him or her a sworn statement, swearing as to why they think that you’re drunk and that the evidence is “in your blood” and needs to be seized. The information a cop needs to provide is very minimal to have the judge sign that order/warrant. Once he has that warrant, the cop has the ability to take your blood regardless of whether you cooperate. Sometimes the blood tests will show a low enough reading to get your case dismissed. However, there are so many things that can go wrong with blood testing, it may instead show a false high result.

What’s important to know is that by refusing to agree to a blood test, there are higher legal standards that must be met in order for that evidence to be used against you. The government must follow procedures in getting your blood and if they do not, it can’t be used. However, if you agree to that blood test, they do not have to follow those procedures and you have waived some important rights. This is why a DWI attorney will tell you to refuse the breath and blood tests, even if your blood gets taken eventually.

Should I do the SFSTs/roadside tests? This is actually a more interesting question. Refusing to do any tests will generally get you arrested, so the average, reasonable, sober citizen is eager to cooperate in order to avoid arrest. There are three tests: HGN (the “eye test,”) the Walk & Turn (walk nine steps down and back an imaginary line) and the One Leg Stand (stand on one leg for 30 seconds.)  The HGN (horizontal gaze nystagmus) looks for an eye movement that may occur as the eyes track an object. While alcohol can cause HGN, there are 47 other things that can cause it that are not related to alcohol and some people are actually born with this condition. Nicotine and caffeine in high amounts can often cause it, so if you slammed an energy drink while out or smoked a lot of cigarettes when you normally don’t smoke, either of these things can cause it and they are both very common with people who are drinking. This HGN “eye test” that the officer does cannot tell what substance or condition caused the HGN, just whether it’s present. Error in giving you the test is also thought to produce HGN. It’s a test to avoid.

What about the Walk & Turn and the One Leg Stand? If you have great coordination, pay extreme attention to detail while listening (and can do this standing on the side of the road with traffic whizzing past,) perhaps you would consider taking these two tests. Please keep in mind that ANY mistake you make on either one will be considered caused by alcohol. The irony of these two tests is that when clients perform them well, they can be evidence of sobriety and contradict a breath or blood test result. It’s just very easy to make mistakes when performing them, so a DWI attorney will generally tell you to avoid them.

If you’re still reading this blog post, you can see why I started with telling you to avoid drinking and driving. There are no good answers for our responsible, drinking and driving citizens here in Austin and elsewhere. However, if you do get arrested for DWI or DUI, I would love to discuss how our office can get the best result possible for you case.


**Please note: the above information is my opinion based upon 20 years of practicing law and my desire to educate the public about problems with our legal system. It is not meant to be legal advice for a specific situation or person and reading it does not create an attorney-client relationship with me or my office. We give free initial consultations for DWI, DUI and other criminal matters, so please call and schedule an appointment if you need legal advice and/or are considering hiring an attorney.**