Friday, August 15, 2008

Just say no to the intoxi-liar

In Texas, the implied consent laws found in the Transportation Code, state that if a driver is asked to provide a breath or blood specimen, provided the officer has probable cause to arrest him for DWI, his refusal to do so may be used against him in a criminal proceeding and he may be subject to a license suspension of 60-180 days. Nowhere in the Code, or in the statutory warning given by the officer, does it state that a driver MUST provide a specimen.

To listen to Harris County prosecutors you would think that by exercising a right not to blow, a citizen is automatically guilty of driving while intoxicated. The drivel that comes out of their mouths usually amounts to telling the jury that the defendant had the opportunity to prove his innocence but that, by refusing, he is admitting he is intoxicated.

Nothing could be further from the truth.

A citizen accused is under no obligation to prove anything at all. He is presumed innocent unless the state can prove beyond a reasonable doubt that he is guilty of a criminal offense. The burden is on the state to produce the evidence to support its claim. That argument is an improper comment on the defendant's exercise of his right to remain silent based on the instruction the judge will give to the jury to stop any discussion of why the defendant did not take the stand. The only reason the prosecutor can get away with his assertion is because the Legislature and the Judiciary don't have the guts to stand up for the rights of the citizenry of Texas.

Furthermore, if the citizen accused has arrived at the point where he is asked to blow into the state's little black box, it means that the only thing his prior cooperation with the officer netted him is an arrest.

Finally, never forget that a jury is free to accept in whole or in part, or reject in whole or in part, any evidence or testimony presented to them.

The advice, as always, is DON'T, under any circumstances, blow into the little black box -- don't make the prosecutor's job any easier.

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