Right to Counsel in a Texas DWI: by Plano DWI attorney Troy Burleson

By Collin, Dallas and Denton county DWI lawyer Troy Burleson

“I asked to speak to an attorney and the officer said I could not. Were my constitutional rights violated?”

This is a common question that clients ask me during the initial DWI interview. The answer is that your rights were probably not violated. DWI is unlike other criminal charges in that the right to counsel, under the 6th Amendment of the United States Constitution, does NOT automatically attach to an individual accused of drunk driving UNTIL formal charges are brought against that person.

The following 4 Texas State cases explain in further detail that a person being investigated for DWI does not automatically have a right to counsel
McCambridge v. State, 778 S.W.2d 70 (Tex.Crim.App. 1989)
Garcia v. State, 787 S.W.2d 957 (Tex.Crim.App. 1990)
Jones v. State, 795 S.W.2d 171 (Tex.Crim.App. 1990)
McRae v. State, 152 S.W.2d 739 (Tex.App.–Houston [1st Dist.] 2004)

The landmark United States Supreme Court case of Miranda v. Arizona, 384 U.S. 436 (1966) prohibits an officer from interrogating a citizen for the purpose of gathering “testimonial or communicative” evidence without first reading the citizen his rights and giving the citizen an opportunity to speak with counsel.

The problem with DWI cases is that the Supreme Court has ruled that none of the typical evidence gathered during a DWI investigation (odors, results of sobriety tests, book in questions, breath test refusal or breath test results, etc.) are considered protected under the Constitution. Therefore, since this evidence in “nontestimonial” in nature according to the Supreme Court, then a citizen DOES NOT have a right to speak with an attorney until AFTER the police officer decided to charge you with Driving while intoxicated.

Most officers will testify that they did not decide to charge you with DWI until after you gave, or refused to give, a breath sample. This covers the officer from having to read you your rights or allowing you to speak to an attorney until that time. However, officers sometimes say things during a DWI investigation that DOES trigger your right to counsel. This is why, it is very important to have your attorney watch the videotape of your arrest thouroughly. If your Miranda rights are triggered, then often times a good attorney can keep certain evidence from being admitted in trial, including not limited to, a breath or blood sample, incriminating statements about drinking, videos, etc.

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