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No Go: Texas Says Per SE DWI Search Law Not Constitutional

First, a little background before we take you into the nitty-gritty of how this all worked out in Texas.

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In Missouri v. McNeely (2013), the United States Supreme Court gave all states the power to decide how they each would protect the constitutional rights of people suspected of DWI.

Texas’ own interpretation of that law recently came into play in Aviles v. The State of Texas.

What Happened in Aviles V. The State of Texas?

Even though Texas DWI laws get pretty complex, this case is pretty cut and clear. Here’s how the situation came to fruition:

  • Texas has a statute allowing police offers to take blood specimens from DWI suspects without a warrant if the driver has been convicted of DWI at least twice previously
  • An officer pulled over Antonio Aviles on suspicion of DWI
  • He asked Aviles to voluntarily submit to a breath or blood test
  • Aviles refused to give the officer permission to do so
  • However, the officer used the statute citing 2 previous convictions to take a blood test against Aviles’ will (normally requires a warrant)

The question then became, “Does Missouri v. McNeely allow Texas police officers to perform these tests against DWI suspects, without their consent, using Texas’ 2 previous convictions rule?”

The State of Texas decided to rule in favor of private citizen’s constitutional rights in this case, and that the officer did not have authority to do this.

Instead, it said the police officer had to show the blood draw was “reasonable under the totality of the circumstances.”

What Should You Do If Pulled Over on Suspicion of DWI? 

As a general rule, you should be polite and compliant, even if the officer acts much the opposite. And you should also maintain this attitude even if you think police have pulled you over illegally. How you act during a DWI arrest goes a long way in determining your guilt or innocence later on.

Here are some things you should and should not do:

  1. Do get your driver’s license and proof of insurance ready right away
  2. Don’t get out of your car
  3. Don’t offer any information – you have the right to remain silent!
  4. Never say or do anything with police without first speaking to a DWI attorney
  5. Do not perform a field sobriety test, no matter how much the officer demands it
  6. If you have been drinking, refuse to take a breathalyzer test

Next, the police will suspend your license. Most likely, police will arrest you. Challenge that immediately – you only have 15 days to do this so you can potentially get an occupational driver’s license.

After that, you get into complex legal processes that only a professional criminal attorney can help you through.

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