Most people know they have the “right to remain silent” when accused of a crime. This includes offenses like DWI and drunk driving. If a police officer asks if you have been drinking, you do not have to answer. Similarly, prosecutors cannot force you to answer such questions in court–and no judge or jury can hold the invocation of this right against you.
Court Refuses to Allow Defendant to “Re-Invoke” Right to Remain Silent While on the Stand
But if for some reason you do choose to testify in your own defense, prosecutors are free to cross-examine you. And any statement you make may be used to impeach (challenge) your credibility. Furthermore, once you waive your right to remain silent, do not assume that you will be allowed to “re-invoke” it if you fear the consequences of your answers.
Consider this recent DWI case from here in Houston. Police arrested the defendant after he crashed his car into an apartment building. The officer who responded to the scene performed field sobriety tests on the defendant, and based on those results, arrested the defendant for DWI. A subsequent chemical test revealed the defendant had a blood-alcohol content of 0.133 percent, which exceeds the DWI threshold of 0.08 percent.
The defendant chose to testify at trial. He attempted to explain the BAC reading by stating he was not intoxicated prior to the accident. Rather, he ingested a “pill” after the crash prior to the police questioned him, and this caused his BAC to spike past the legal limit.
The defendant would not specifically identify the pill. He simply said it was “something I shouldn’t have” that he took “for sleep or for relaxation.” On cross-examination, the prosecutor asked the defendant point-blank, “What kind of pill was it?” At this point, the defendant attempted to invoke his Fifth Amendment rights, and his attorney asked the prosecutor for immunity from prosecution based on any answer.
The judge, ignoring these objections, ordered the defendant to answer the question under penalty of a contempt citation. The defendant ultimately responded, “I don’t know what the pill was,” only that it was “[s]omething that makes me tired.” The jury convicted the defendant of DWI and sentenced him to 30 days in jail.
On appeal, the Texas First District Court of Appeals held the trial court did not violate the defendant’s constitutional rights. Indeed, the Court agreed with the prosecution that the defendant conclusively “waived his privilege against self-incrimination by voluntarily testifying,” and the prosecution was therefore entitled to ask about the pill, even if the defendant’s answer might subject him to additional criminal charges, i.e. illegal possession of a controlled substance.
Do Not Speak to the Police–Call a Houston DWI Defense Lawyer
Cases like this are why lawyers typically advise their clients never to speak with the police or testify in court. Many people think they can simply talk their way out of a DWI charge by offering a convincing story. But this is more often than not a fallacy. Instead, your best option if charged with drunk driving is to contact an experienced Houston DWI defense attorney. Call the Law Offices of Tad Nelson & Associates at (281) 280-0100 if you need immediate legal assistance.