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How to beat a breath test case - DWI

When an officer asks you to take a breath test, the general rule of thumb is to say no. Those machines are tricky, and have a record of having some problems from time to time. However, for some reason, time and time again, people still provide samples of their breath because either they feel that they have no other option, or they feel that if they go along with the officer they may get some special treatment. I'm here to tell you that when the cop asks you for a breath test he's already determined that you are GUILTY, and you are going to go to jail and will have to hire a lawyer to fight your case in court.

Remember, YOU DO NOT HAVE TO CONSENT TO TAKING A BREATH TEST. While you'll probably lose your DL if you refuse, in the long run its better strategically. Also, remember, the second the cop asks you to get out of your car, he's already under the assumption you're intoxicated, and there's a 99% chance you're going to jail regardless of how you perform on the field sobriety tests, or your results on the breath test.

If you follow these instructions, you will significatly increase your odds at trial and winning your case. This strategy should only be employed if you can remember to do it CORRECTLY. While its not full proof, its one option that may play in your favor. This technique involves declining the field sobriety tests (so there's no video of you failing the tests - EVERYONE FAILS - so unless you're a tight rope walker for living, I reccomend not doing them, regardless of how awesome you think you'll perform), however, you TAKE the breath test (but only after some strategically asked questions).

Here it is:

#1: When the cop pulls you over, get your DL and ins and have them ready. They'll use any fumbles, searching, or difficulty handing them over as evidence of intoxication. Roll your window down, and give them to the cop WITHOUT saying anything. Hopefully, he won't smell alcohol on your breath. If he asks you questions, be polite and respond without volunteering any incriminating information.

#2: When the cop asks you where you've been - tell him. A bar/friends/sports game/ whatever, just be straight with him.

#3: When the cops asks you if you've been drinking, you say NO. At this point, if the cop is asking you that you're PROBABLY GOING TO JAIL BECAUSE HE THINKS YOU'RE INTOXICATED. Any information you give him from this point on is evidence that is going to hurt you.

#4: When he asks you to step out of the car, step out, try not to use your hands.

#5 : When the officer flashes his light in your eyes, and asks you to "follow the light/pen/finger" you stop him and tell the officer, you don't think you want to do any field sobriety tests because you don't know what he's looking for. He'll come back at you and ask you questions and try to do it again, just say NO.

#6 When the officer starts to ask you to do a one leg stand, walk and turn, walk the line, ect, just say NO. At this point ASK FOR A LAWYER. While you're not entitled to one at this point, it always looks great on video.


#7 You and the officer will have gone back and fourth by now, and here is where you say, "Look, I don't trust those field sobriety tests, I want a breath test, I'll take a breath test instead of doing this." Remember, by this point you must understand that the officer is already going to take you to jail, so be aware there's nothing you can do or say to stop it. The officer at this point will probably say, "OK, you want a breath test, you got it."

#8 Stop the officer here, and ask all or some of the following MAGIC QUESTIONS, and GET THE OFFICER TO ANSWER YOU in the affirmative.

*If I pass the breath test will I be released? If I fail it will I be arrested?State v. Serano

*If I take the test and pass will I be released, but If I refuse will I be charged with DWI?Erdman v. State

* If I refuse the breath test, will I be automatically charged and incarcerated?State v. Sells

* If I refuse am I automatically convicted of DWI and my license will be suspended if I refuse to give a breath sample? Hall v. State

#9 Once you get the officer to answer YES to any or all of these magic questions, you'll be taken to jail and given the opportunity to provide a breath sample. Provide it. (I advise you to provide it, because if you don't they'll get a warrant and take your blood)

#10 Bail out, hire a lawyer, and then fight your case in court.

The reason these are "magic" questions are because under Texas law when an officer answers any of these questions in the affirmative, the courts have found the resulting consent to provide a breath sample as involuntary. In other words, the cop coerced you to provide the breath sample. In this State, an officer can not coerce you to do ANYTHING, this goes for providing breath, blood, confessions, anything! You have the right to say NO, and if the officer forces you to say YES, that makes the breath test INADMISSIBLE in court.

So, at the end of the day if it's done right - there'll be NO VIDEO OF ANY FIELD SOBRIETY TESTS (because you refused them), and there will be NO EVIDENCE OF A BREATH TEST (because it will be inadmissible as evidence). Without any video of you falling over or failing the field sobriety tests, and without any breath tests results, I find it hard to believe the State will be able to prove their case against you.

Now, if you get a smart cop, who won't give you a straight answer to the magic questions, simply repeat the following statement all the way to jail AND SAY NOTHING ELSE.

"I want my lawyer, I want my lawyer, I want my lawyer, I want my lawyer, I want my lawyer."

Be safe out there.

Categories: Criminal Defense, DWI
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