If you have been arrested in the Houston, Texas area, you then need an experienced criminal defense lawyer to explain what your rights are.
You have heard them on TV and in the movies many times: “you have the right to remain silent; if you say anything it can and will be used against you in a court of law; you have the right to be represented by a lawyer before answering any questions; if you cannot afford a lawyer the court will appoint a lawyer to represent you”. These rights only come into play when you are under arrest, which means that you are not free to leave, and when you respond to questions asked by the police. Any unsolicited or spontaneous statements made by a defendant are not protected by Miranda. Also, any statements made during the course of a traffic stop prior to your arrest are not protected by Miranda.
You’re not talking your way out of being arrested, the only words coming out of your mouth should be “I want to speak to my lawyer.” So, if you do only one thing right, then it is best that you remain silent and make NO statements at all.
A police officer can do anything that a private citizen can do. If the police investigation has stalled and they do not have enough evidence to establish probable cause for a search warrant to search your home, then a common tactic is the “knock and talk”. A police officer will simply walk up and knock on your front door and ask if he can come inside and speak with you. If you allow the police officer to enter your home, then anything he sees in “plain sight” and anything you say to him can be used to establish probable cause for a search warrant later. However, the police officer will not stop with just asking a few questions, at the end of this consensual interview he will then ask you permission to look around the house. If you reply sure go ahead, then you just consented to a search of your home.
You do not have to consent to any of the above scenarios. If a cop knocks on your door and asks to speak with you, say NO. Tell the cop you are busy and to contact your lawyer, then close the door. If a cop knocks on your front door and asks permission to search your home, say NO. Tell the cop to get off your property until he has a search warrant.
The officer must have reasonable suspicion to conduct a traffic stop, such as observing a moving violation. During a traffic stop police can develop probable cause to believe that you have committed a crime and that there is evidence of that crime in your vehicle, if this happens then they are not required to get a search warrant before searching your vehicle. But when your case gets to trial the police will still be required to state their evidence constituting probable cause for the search of your vehicle. So usually the police will first ask permission to search your car. If you say yes, then police can tear your car apart during the search. If you say no, then a couple of things might happen. First, the cop may call a K-9 unit to come to the scene and run a drug sniffing dog around your car. Second, the cop may just say that he smells the odor of marijuana and search without your permission and without a search warrant.
Bottom-line, say NO. You have the right to refuse all searches, make the police work for it if they want to invade your privacy and search your car.
Before asking you to do Field Sobriety Tests, the cop must first establish that he has a reasonable suspicion that you have consumed alcohol and that you might me impaired. He will do this by observing physical signs such as slurred speech, red or watery eyes, odor of alcohol, your balance when you exit your vehicle and walk to the rear of your car, or if you admitted to having “a couple of drinks with dinner”. The reason you were pulled over could also be an indicator of intoxication, such as failing to maintain a single lane of traffic or crossing the center line. If the cop reports enough of these circumstantial clues, then he can ask you to do the Field Sobriety Tests, which are the eye test or HGN, “one leg stand” and “walk and turn”.
It is your right to refuse these tests, say NO. If you do say no then you are going straight to jail, but at least you did not give the police any more evidence to use against you.
The short answer is that it is your right to say NO and refuse all tests. However, the No Refusal Weekend and Zero Tolerance policies of law enforcement have complicated that short answer.
It is always best to say NO and refuse the blood test. If the cop wants to take your blood, make him get a search warrant. Once the cop has the search warrant, make it perfectly clear that you are only cooperating under duress. If you do not cooperate with the blood draw, then several police officers will hold you down while your blood is taken by force.
It is easier to fight a positive breath test then it is to fight a positive blood test. So, if you are arrested over the weekend or on a holiday, or anytime when it is likely that the cop can find a judge to sign a search warrant, then it is best to take the breath test.
There are still laws on the books in Texas that say under certain circumstances if you are arrested for a Felony DWI, or Intoxication Assault, or Intoxication Manslaughter, then the police can take your blood without a search warrant. However, due to a recent decision by the United States Supreme Court, most police officers should try to obtain a search warrant.
Many times I hear clients tell me that the police officer said that they had no choice so the client consented to the blood test, or what happens next is that police officer tells the client that if they do not consent to the blood test, then the cop will get a search warrant and take their blood regardless of consent. So, the client consents when they should say NO. Make the police work for the evidence to convict you, make the cop get a search warrant for your blood.
The fundamental principle of our justice system is that you are “innocent until proven guilty.” This sounds good, and many lawyers try to hide behind this principle by pointing out to a jury that is responsibility of the State to prove that a defendant is guilty beyond a reasonable doubt. These lawyers will simply sit back and try to poke holes in the State’s evidence by pointing out inconsistencies in that evidence. Solely relying on this defense strategy will greatly increase the likely hood of your conviction. I believe, despite what the law says, a defendant must do everything he can to prove his innocence. A criminal defendant and his lawyer must be proactive in presenting a defense to the jury so as give the jury a reason to find the defendant not guilty.