Constitutional Rights Do Not Apply to a DWI

THE COP SAID I DIDN’T HAVE THE RIGHT TO TALK TO AN ATTORNEY

Your Constitutional Rights do not apply to a DWI

You can only protect your liberties in this world by

protecting the other man’s freedom. 

You can only be free

if I am free.

CLARENCE DARROW

The Declaration of Independence begins “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness”.

The Constitution does not reserve or limit any of our rights because of a specific criminal charge. That means that someone accused of murder is entitled to the same rights as someone accused of writing a bad check. These rights apply to YOU as a citizen, not to a specific charge. This is the way it is ‘supposed to be’, but in the real world, THIS IS NO LONGER TRUE.

Our courts have continuously found ways to limit the Constitution and limit the rights of people accused of DWI. You will find the following statements difficult to believe, but they are true:

  • If you are arrested for DWI, the officer will IMMEDIATELY seize your driver’s license and will not return it. This is a form of punishment and you have not even had an opportunity to talk with a lawyer, see a judge, or post bail. You ARE PRESUMED GUILTY even though the Constitution guarantees that you are to be presumed innocent unless proven otherwise — A DWI LIMITATION.

  • You have the right to contest the revocation of your driver’s license. If you win the hearing to save your license, you may think that’s it, ‘I have heard of double jeopardy.’ Well, you still can lose your license from an adverse ruling in the criminal court — A DWI LIMITATION.

  • If the judge at the driver’s license hearing rules that the police officer didn’t have authority to stop your car or to arrest you the criminal case can still proceed forward. The cops get a second bite at the apple to try and convict you — A DWI LIMITATION.

  • If you are arrested, the Officer will rarely read your Miranda rights to you even though he will continue to question you. You have watched TV and know this is wrong—Not for DWI’s. The Court again has found — A DWI LIMITATION.

  • Even if the Officer reads you the Miranda rights you will immediately be questioned about your behavior prior to being stopped. You will be asked to provide evidence that will be used against you. You will not be told that you don’t have to take police roadside agility tests — A DWI LIMITATION.

  • If you are arrested and taken to jail for DWI, you should feel confident that you will be allowed to talk with an attorney prior to questioning or being asked to give incriminating evidence against yourself. This is true in all crimes except DWI, again — A DWI LIMITATION.

  • If you are arrested and refuse to take a breath test, Texas State law says that refusal can be admitted to a jury and it can be considered as evidence of guilt. But— what about the 5th Amendment saying ‘I have the right to remain silent and it cannot be used against me?’ Again, — A DWI LIMITATION.

  • If you are driving and are stopped at a roadblock, then questioned about drinking, you might easily think “Wait, you have to have a reason to stop me, this is not legal.” In Texas, as long as the officers say that the road block was for the purpose of checking driver’s licenses, then they can stop you. If they were looking for drugs, or stopping you for any other crime, you would be correct, but the DWI stop is masked as a driver’s license check — A DWI LIMITATION.

  • In most cases, if the government knowingly destroys evidence, that evidence cannot be used against you. In a DWI case, you are asked to take a breath test. The machine is capable of preserving the sample of your breath for additional testing by your attorney at a cost of around $2.50 per breath test. The Government, for monetary reasons and knowing there will be no punishment for destroying that evidence, has chosen not to maintain the sample, yet they are allowed to introduce their test as evidence — A DWI LIMITATION.

  • If you have a couple of quick drinks and are stopped within 5-10 minutes after leaving your house or a meeting, you may not be affected by the alcohol yet—but you still may be requested to take a breath test and as long as it is taken within 2 hours of your arrest, that is close enough for government work. It can be used against you and show a much higher alcohol level than what you had while you were actually driving. In effect, you will be guilty of being capable of committing a crime even though you were not intoxicated when stopped — A DWI LIMITATION.

  • A man’s home is his castle! We have heard this many times and you know the Constitution says the government must have a search warrant to enter your home, even for a murder investigation. A recent California case allowed the police to enter a home for a misdemeanor DWI investigation without a warrant. This was based on a neighbor’s tip; that is, the police did not even see the person driving, they just entered the home without a warrant. Surely, this would not be allowed. Sorry — A DWI LIMITATION.

  • You have heard of double jeopardy. The government will start two proceedings after a DWI arrest–an administrative proceeding and a criminal proceeding. You will be required to respond to both and a loss at either will result in you losing your right to drive. That’s right, the government gets two chances to take away your license — A DWI LIMITATION.

  • The Constitution requires a warrant before evidence can be forcefully taken. In Texas, if you are stopped, asked to submit to a breath test and refuse (remember the 5th Amendment and your right not to incriminate yourself), the officer will get a search warrant. You will be strapped down and a police officer will stick a needle in your arm and take your blood on the spot. More and more counties in Texas are implementing “no refusal weekends” and San Antonio has a “no refusal” program every day of the year because we have —– A DWI LIMITATION.

  • In Texas, the police can take your blood by statute if you are charged with any Felony DWI, DWI with Child, Intoxication Manslaughter, Intoxication Assault and any Misdemeanor DWI if someone is transported to the hospital. Even if the injury reported is merely a “soft tissue” chiropractic type claim — A DWI LIMITATION.

  • You can be convicted of DWI even if your driving was not impaired. The law has what we call a ‘per se’ provision. That means if the machine says you are .08 or more, you are presumed guilty even if your driving was not affected. The government will not have to show your driving was impaired, just that a machine reached a certain number. You just thought you had a right to be presumed INNOCENT — A DWI LIMITATION.

  • The Constitution guarantees an accused the right to face the accuser in court before a jury. This is the Right of Confrontation. In DWI cases, the accuser is most often a machine that makes mathematical conversions to calculate a number. This mathematical conversion is secret because the manufacturer considers it ‘proprietary’. Math is generally considered to be an absolute and no one owns it, but in DWI cases you will not know the method used to compute your number because it is the proprietary property of the manufacturer — A DWI LIMITATION.

You get the idea. DWI has become a social crime and no politician, including judges, will speak against the charge or means of applying penalties if he wishes to remain in office. We also continue to move away from the problem– dangerously intoxicated drivers. The limits are lower and you can be convicted for a number that has no relationship to your driving abilities.

None of this addresses the repeat offenders who are heavily intoxicated but it does move towards a new form of prohibition in our country. One state has lowered the number to .04 for repeat offenders and it is easy to envision a nationwide move to lower the number to .04 for all drivers. In addition, DWI’s are the ‘cash cow’ for the court system. Court costs for a first time DWI are higher than for a felony drug possession. There are numerous reasons your case is being placed on a ‘fast track’. There are many powerful forces striving to increase the number of DWI convictions throughout the nation– all the more reason you need an experienced and well trained DWI ATTORNEY fighting for you and your good name.

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Busted?  The DWI Dudes Can Help.

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