Yes. In Texas, a person may be charged with DWI if an officer believes that person drives without the normal use of his mental or physical faculties due to alcohol or a drug or a combination of the two. In other words, if the officer believes your mental or physical faculties were at all less than normal you can be charged and tried for DWI. In fact the refusal can be used against you.
A good attorney can demonstrate that refusing tests is your RIGHT and you should not be punished for asserting this right. A skilled trial attorney will explain to the jury that submitting to an invasive or unreliable test may actually demonstrate rational thought and be evidence that your mental faculties were normal.
Situations may vary, but in most cases, the simplest, most effective defense is for the suspect to POLITELY refuse to participate in ANY testing or questioning. Just say no!
The only thing you must do in a DWI investigation situation is to provide the officer with your proper identification. All sobriety testing is voluntary on the part of the suspect.
The “Just Say No” defense is grounded in the simple premise that it is almost impossible to establish that someone is intoxicated if the individual merely sits (or stands) there saying nothing and doing nothing. It’s hard to screw up “doing nothing.”
This is NOT to suggest that you should drive drunk, or be irresponsible in operating a motor vehicle. No amount of legal advice can keep a drunk driver from being arrested, or killing themselves or someone else. Use your head, and drive responsibly! Generally speaking, if you are stopped for DWI in Texas, you are better off to politely refuse to do ANY testing.
The first test the police generally request is horizontal gaze nystagmus – the “follow the pen with your eyes” test. As soon as the police request you to perform this test, simply and politely refuse. Then refuse all other testing as well.
Many people seem to have trouble saying no to a police officer. The easiest way is to simply turn the tables on the officer: “Officer, which tests am I required to take? Oh? I’m not required to take ANY tests? Well, then, I know that I’m not intoxicated, but since I’ve never done these tests before, I’m not going to take them now.”
Some lawyers have stated that refusing all of the tests will result in you being arrested every time. This is clearly not the case. I have had several clients utilize the “politely refuse all tests” approach, and the officers let them drive off, or let them call a friend to drive them home. If you refuse to take any of the tests, even if the officer DOES arrest you, you stand an excellent chance of beating the case. No tests basically equates with no evidence, and no evidence almost always leads to a not guilty verdict.
If you TAKE the tests, you basically are giving the police all of the evidence they need to convict you, and you are handing it to them on a silver platter!