Can an Off-Duty Officer Working a Second Job Detain Me on Suspicion of DWI?

September 15th, 2020 by Tad Nelson in DWI

Although most DWI arrests come from traffic stops, the truth is that anytime a police officer observes–or is informed of–possible evidence of drunk driving, you may be subject to questioning and arrest. That is why you always must remember you have the right to remain silent and not answer any questions posed by an officer, even if it is not a formal arrest or traffic stop situation.

Houston Man Receives 10-Year Sentence for Fourth DWI Conviction

A recent DWI case from right here in Houston, Washington v. State, provides an apt illustration. This case started at a local car wash. A Houston Police Department officer happened to be working a second job at the car wash. Another car wash employee approached the off-duty officer and informed him that “a vehicle at the car wash entrance had come off the automated tracks.” The other employee suspected the driver of the vehicle might be intoxicated.

The off-duty officer later testified that he observed the vehicle in question “sliding sideways” and that the driver–the defendant in this case–“almost crashed” into the car behind him while trying to back off the car wash track.

The officer then approached the defendant. The officer said he observed the defendant was slurring his speech and there was a smell of alcohol “coming from inside the vehicle.” At this point, the officer asked the defendant to turn off his engine and get out of his car. The officer then called for backup.

beer glass with keys

While waiting for backup, the off-duty officer continued to question the defendant, who admitted that he “made a mistake” and “had one beer or one drink.” The on-duty officers arrived shortly thereafter and placed the defendant under arrest for DWI. Prosecutors subsequently filed felony DWI charges, based on the fact the defendant had at least three prior drunk driving convictions.

A jury convicted the defendant of third-degree felony DWI and sentenced him to 10 years in prison. On appeal, the defendant challenged the legality of a blood draw taken after his arrest, the results of which confirmed he was legally intoxicated. The defendant argued the off-duty officer who initially questioned him lacked “reasonable suspicion” to detain him. Furthermore, the defendant insisted the on-duty officers who arrested him lacked probable cause to believe he committed DWI.

The Texas 14th District Court of Appeals rejected these arguments and upheld the defendant’s conviction and sentence. The events that took place at the car wash–i.e., the defendant nearly crashing his car while backing up and the employee’s suggestion he was drunk–was enough to give the off-duty officer “reasonable suspicion” of possible criminal activity. And the defendant’s subsequent behavior, once he was detained by the officer, satisfied the requirements for “probable cause.” The appellate court, therefore, concluded there was nothing unlawful about the defendant’s detention or arrest.

Speak with a Houston DWI Defense Lawyer Today

When it comes to DWI, you should always assume that any statement or admission to police will be used against you–even if the officer happens to be working off-duty at a second job. Always remember you not only have the right not to answer questions; you also have the right to the assistance of a qualified criminal defense attorney. If you have been arrested for DWI and need representation, contact the Law Offices of Tad Nelson & Associates in Galveston, League City or Houston today. Call 281-280-0100

 

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