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Do Police Always Need “Reasonable Suspicion” of DWI Before Talking with a Driver

When it comes to DWI & drunk driving offenses in Houston, you need to be concerned with both the potential civil and criminal consequences. For instance, if you are arrested for DWI and have no prior drunk driving record, you can still face up to 180 days in jail if convicted on criminal charges. But you separately face the administrative suspension of your driver’s license by the Texas Department of Public Safety (DPS).

Driver’s License Suspended Following Welfare Check” Leading to Drunk Driving Arrest

Unlike criminal DWI trials, in an administrative hearing to suspend your license the DPS only needs to show “by a preponderance of the evidence” that you were over the legal blood-alcohol concentration limit of 0.08 percent while driving a motor vehicle. The DPS must also show, however, that there was “reasonable suspicion to stop or probable cause to arrest the person.”

In many cases, probable cause exists due to a police officer observing an apparent traffic violation. But the “reasonable suspicion” standard should not be overlooked. This can apply to a wide range of scenarios where the officer observes something unusual but not necessarily criminal, and that prompts a decision to initiate contact with the defendant.

Here is an example of what we are talking about. In a recent Texas appeals court decision, Cardoza v. Texas Department of Public Safety, a DPS patrol officer observed a car parked on the side of the road with its hood up, its hazard lights on, and the driver “walking around the vehicle.” Although the officer took no immediate action, approximately 40 minutes later he observed the car was still there, except now the driver was changing a flat tire.

At this point, the DPS officer decided to initiate a “welfare check” to see if the driver was okay. During the course of the officer’s check, he observed the driver had “red bloodshot and glossy eyes.” Another officer at the scene smelled a “strong odor of alcoholic beverage” coming from the driver. The driver then admitted “he had consumed three or four drinks” that evening. This led the DPS officers to administer field sobriety tests to the driver, which he failed. After the driver refused a Breathalyzer, he was placed under arrest for DWI.

DPS subsequently suspended the driver’s license. At an administrative hearing, and later in court, the driver argued the DPS officers lacked “reasonable suspicion” to stop him in the first place. The DPS, a trial judge, and ultimately the Court of Appeals rejected this argument.

As the appeals court explained, the DPS officer “did not need reasonable suspicion of criminal activity in order to determine why [the driver] was still stopped on the side of the road–with his hazards on and car hood up–nearly forty minutes after the troopers first observed him in the same circumstances.” In this context, the officers performed a “community caretaking function.” The driver was not in police custody at this point, so his constitutional rights were not implicated.

Speak with a Houston DWI & Drunk Driving Defense Lawyer Today

Of course, if during the course of a police “welfare check” you volunteer information–such as the fact you have been drinking–that can be used against you in court. This is why it is important to remember your rights to remain silent and to speak with a qualified Houston criminal defense attorney if you are arrested and charged with DWI. Contact the Law Offices of Tad Nelson & Associates today if you need immediate legal assistance. Call (281) 280-0100.