More arrests are made for drunken driving than for any other crime in Austin every year, but some drivers are unaware of their rights if they are pulled over for driving while intoxicated.
Austin attorney Jamie Spencer, who defends DWI cases and maintains a Web site on DWI laws, said a driver can refuse sobriety, breath and blood tests, which police officers will ask to administer after stopping a driver and if the officer smells alcohol on the driver's breath or the driver admits to drinking.
Spencer said he advises drivers to refuse sobriety tests because they will usually still be arrested, even if they blow under the legal limit of .08 on a breathalyzer. Refusing a sobriety test can be a civil violation, which could lead to a driver's license suspension, but could be more beneficial than losing a DWI case by willingly providing incriminating evidence, he said.
"In some states, it is a criminal violation to refuse to take a breath test," Spencer said. "The Texas Legislature has so far not made it a crime to refuse to take a breath test, and I don't think that they're going to any time soon."
Spencer said a 24-hour magistrate court was approved and established by the Travis County Commissioner's Court to reduce overcrowding in the Travis County jail, but said the court also makes it easier for Austin police officers to obtain warrants throughout the night to draw blood from drunken drivers.
Austin Police Chief Art Acevedo drew criticism last month when he announced his plan to train officers to draw blood from drivers, replacing jail nurses in the process.
Debbie Russell, president of the Central Texas chapter of the American Civil Liberties Union, said warrants are often questionably obtained and that Acevedo should be careful about trying to create shortcuts in the legal process.
"The one thing that's very worrisome about it is that the chief was a little too willing to err on the side of unconstitutionality," Russell said.
Spencer said Acevedo's plan created a stir in Austin's legal defense community and said the proposed process would either cause the blood evidence to be thrown out in court or provide a solid appellate claim if the driver is found guilty.
He said drivers should avoid the legal process by choosing not to drink and drive.
"It's cheaper to rent a helicopter to fly you home than it is to get arrested for DWI," Spencer said. "Get a designated driver, and that doesn't mean the person that has had the least to drink - it means somebody that hasn't had anything to drink."
DWI advice
The following is a list of tests a person can refuse and the penalties for refusing if pulled over for drinking while driving:
What you can refuse: - Standardized Field Sobriety Tests - Breath test - Blood test (without a warrant)
What will happen if you refuse to be tested: - Lose your license (without an Administrative License Revocation hearing) - Spend the night in jail - Comply with a blood test after a warrant is acquired
Source: Austin attorney Jamie Spencer
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