Thursday, October 2, 2008

The truth about the statutory warning

If you've been arrested for DWI a cop read you a statutory warning informing you of your rights under Texas' implied consent law.  The document you were handed was the DIC-24.  The form indicates whether the officer asked for a breath or blood sample and whether you provided the sample or refused.  The form also notes if you refused to sign after declining to provide a sample.

The DIC-24 begins by informing you that you are under arrest for driving while intoxicated.  So much for that lie that the officer will release you if you blow under a .08.  In reality, should your alcohol concentration be below the legal limit either (1) the cops will call in a drug recognition "expert" to determine if you are under the influence of any prescription drug, non-prescription drug or illegal drug; or (2) the state will argue that you were over the limit at the time of driving through a process called retrograde extrapolation.

A common theme in breath test refusal cases is that the mere refusal of the citizen accused to provide a breath sample is evidence of his guilt.  Not according to the DIC-24.  Per the statutory warning, a refusal may be admissible at trial.  The citizen accused's refusal is just one more piece of evidence at trial -- and I argue that it's evidence my client wasn't intoxicated since it showed that he or she was aware that their cooperation with the police only got them deeper in the mire.

In short, if you're being offered a breath test you are already under arrest and by blowing in the state's breath machine you are handing the state evidence to use against you.

If you've been arrested for DWI, contact my office now with any questions you may have.

No comments: