So You Got Arrested
The Texas justice system can be messy- we talk to the key players to uncover what really happens. Hosted by BRCK Criminal Defense Attorneys, this podcast dives into real stories and hard truths from inside the Texas criminal courts.
We explore what happens after an arrest, how charges are fought, and what it's like to face the court system in places like San Antonio, South Texas, Austin and the Texas Hill Country.
Whether you’ve been arrested, have a loved one in jail, or just want to understand the criminal defense process in Texas, this show gives you raw, unfiltered insight from criminal lawyers, legal experts, and those directly impacted by the system.
So You Got Arrested
Pleading the Fifth, Miranda, and Vehicle Searches: Know Your Rights in Texas
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Tune in as BRCK Criminal Defense attorneys break down critical constitutional rights in the context of Texas arrests. This episode demystifies common legal phrases like "pleading the fifth" (Fifth Amendment self-incrimination) and the Miranda Rule (custody and interrogation). The hosts also cover Fourth Amendment protections against unlawful search and seizure in vehicles, discussing the automobile exception, probable cause (like the smell of marijuana), and inventory searches. Get essential advice on handling traffic stops, Field Sobriety Tests, and DWI blood/breath requests, especially before the holidays. 00:00 Introduction: "So You Got Arrested" podcast, Texas justice system, and understanding your rights. 00:27 Pleading the Fifth: Explaining the right against self-incrimination from the Fifth Amendment. 01:22 Pleading the Fifth for Witnesses: The critical difference: witnesses who are not suspects do not have a Fifth Amendment right. 02:12 Fourth and Fifth Amendments: Overview of the right against unlawful search/seizure and self-incrimination. 02:43 Federal vs. State Constitutional Rights: Discussing how the Texas Constitution provides equal or greater rights. 03:37 Miranda Rights: Debunking the myth that a case is thrown out if rights aren't read; the requirements of Custody and Interrogation. 04:32 Volunteered Statements (Res Gestae): Why statements not in response to questioning (e.g., in a police car) are admissible. 05:58 The Jinx/Robert Durst Example: Confessing while talking to himself on a hot mic during an interview (not custody/interrogation). 07:25 Vehicle Stops and the Fourth Amendment: Discussing the lower expectation of privacy in an automobile vs. a home. 08:23 Automobile Exception: Why police generally don't need a warrant to search a vehicle (mobility). 09:52 Probable Cause - Smell of Marijuana: Why the smell of marijuana alone gives officers probable cause to search. 11:43 Searching Without Probable Cause or Consent: Discussing the use of a K-9 unit (drug dog). 12:41 Arrestable Offenses in Texas: Most offenses are technically arrestable, except speeding and open container. 13:28 Inventory Search Exception: How police can search a vehicle after towing it, and the requirement for a specific department policy. 17:24 Arizona v. Gant: The Supreme Court decision that cut back on the "search incident to arrest" doctrine for vehicles. 21:14 Pretext Stops: Why the officer's true motive for a stop doesn't matter as long as a legitimate violation occurred (e.g., expired registration). 23:39 Holiday Safety and DWI Advice: What to do when pulled over for a potential DWI. 24:57 Field Sobriety Tests: Advice on refusing or performing the tests and the Catch-22. 25:57 Breath/Blood Tests: Discussion of Intoxilyzers, blood draws, and the varying policies across counties. 28:35 Final Holiday Warning & Contact Information
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Show Open And Episode Focus
SPEAKER_00You're listening to So You Got Arrested. The podcast that tells you what really happens after an arrest. Hosted by Brick Criminal Defense Attorney. We talk to the people who've lived it, worked in it, and been trapped by it. Whether you're facing charges or just want to understand your rights, your options, and the smart moves that could change everything, we've got your back.
SPEAKER_04So we hear these phrases and terms that get thrown around a lot in movies and TVs. And so uh today, you know, I wanted uh our uh colleague James Heath to kind of address some of these things that we hear. Um a big one that I I hear a lot in movies that a lot of people don't understand is when somebody says, I plead the fifth, I plead the fifth, um, you know, what what does that mean to plead the fifth? And does that mean, you know, you don't have to talk to anyone? Does that mean after that anything you say you're not in trouble anymore? Uh you kind of explain that to us.
SPEAKER_03Right. So pleading the fifth comes from uh the fifth amendment of the Constitution of the United States of America, contrary to popular belief, which would be the Chappelle show, I believe. But um in the Fifth Amendment, it says you have the right not to incriminate yourself in a in a you know a criminal matter. Uh so when you when you plead the fifth, you know, you would be stating, right, that you're asserting your right to not answer a question that could incriminate you.
SPEAKER_04And so I I've had cases where you know it's not the defendant who's trying to plead the fifth. And I don't know if you've ever had this, Scott, but it's just a witness.
SPEAKER_02Right. We've had witnesses who we we've pulled in front of the grand jury before as a prosecutor, who say that they want to plead the fifth. I'm like, you don't have a fifth amendment right. If you're not a suspect, you don't have a fifth amendment right. So witnesses do not have fifth amendment rights.
SPEAKER_04Right. And that that comes up from time to time. You know, I'm interviewing a witness and I'm saying, well, look, the state may subpoena you, they're they're gonna put you on the stand to testify, and they say, Well, I'm just gonna plead the fifth. And it's like, well, you you can't do that.
Miranda: Custody And Interrogation
SPEAKER_02You don't have a fifth amendment right unless you're accused or or subject of suspect in a crime.
SPEAKER_04Yeah, and so a lot of these things that we see and that we hear about in these movies and these TV procedural dramas stem from these amendments to the Constitution. And it's primarily the the Fourth Amendment, which prevents uh unlawful search and seizure, and then the Fifth Amendment, which which has you know the right against self-incrimination and a whole host of other rights. So uh James, I know there were some some of these rights that you wanted to discuss. What what do you want to talk about?
SPEAKER_03Well, I think first and foremost, it's important to put it out there that right, uh, there's different sovereigns. So I think you know the federal constitution really covers the baseline minimum rights. Um that you can't, no state can fall below what's what's in the what's in the Bill of Rights right there. Uh however, you know, states can write their own constitutions that give greater rights. So, you know, most people are gonna be able to point to not only a federal right, but a state constitutional right as as well. Uh and in in Texas, I I do believe that there are many circumstances in which the Texas constitution provides for more rights than the federal provides for greater rights than than what's afforded to us under federal law. Absolutely.
SPEAKER_04Yeah, yeah. So um let's talk a little bit about like I I always have you know this discussion with clients that they they they say, well, they arrested my son, and my son just called me from the jail and said that when he got arrested, they didn't read him his rights. So can we get the case thrown out?
SPEAKER_03Right. So that would be a Miranda issue, right? So it's it's falling under the Fifth Amendment, uh, United States vs. Miranda. And um Miranda is a a tricky thing, right? So Miranda is gonna apply, you know, it's a statements, but there has to be two prerequisites that are triggered for Miranda to apply. Those are, you know, custody and interrogation. So custody is essentially, you know, a reasonable person, the hypothetical reasonable person, would not feel free to walk away.
SPEAKER_04Uh so you have to be in law enforcement custody.
SPEAKER_03Right, absolutely. From some state actor, some state employee, you know, state authoritarian.
SPEAKER_04And so the the guy uh running out of his apartment covered in blood, saying, Hey, I just stabbed her as the cops pulling up, uh, would probably not be in custody for that right to apply.
SPEAKER_03Absolutely not.
SPEAKER_04Okay. And then you said there was a second.
SPEAKER_03Right. So so that's interrogation. So the question phrased to you, right? So you're in custody, you can't leave. Uh, and if they're asking you incriminating statements, right, then there's a chance that later on those statements can be ruled inadmissible. But I think the the the textbook example is the DWI. You get, you know, handcuffed, you get put in the back of the car, you're unaware that you're being recorded in the back of the police car. And they're looking, they're rummaging through your car, looking for what they can find. And you say, God, I can't believe I drank that much. Well, no one asked you a question. You just volunteered that information, and it can absolutely be used against you.
SPEAKER_04So, in that circumstance, Miranda would not apply.
SPEAKER_02Absolutely. I've had it happen. I was a special prosecutor on a murder case up in Hayes County, uh, and uh he took them to show the SAPD where he the body was, his girlfriend's body. Uh, and on the way back, not in response to questions, so that's the prerequisite. He he tell he asked the officer, How much do you think I'm gonna I would get for a murder? Okay, but it wasn't in response to a question. So that stuff was admissible even though he was in custody.
Spontaneous Statements And “The Jinx”
SPEAKER_04Well, there's this uh fantastic documentary on HBO called The Jinx, and it's about Robert Durst. And the I don't know if you guys have seen it, but it it's famous for this reason that after uh, you know, they're they're interviewing him, and he almost has this moment like from the naked gun where he goes into the bathroom with his mic still on, you know, and in the naked gun, Frank Drebin doesn't, and you can hear him urinating. Uh, but Robert Durst is in the bathroom and they've asked him all of these questions about this murder. And he says, Well, that's it. They've got you, you know, and basically confesses to a crime on this recording. And on that recording, obviously, he's not in state custody. He's sitting down for this voluntary interview with, you know, these documentarians. And it's not the product of interrogation because he he's by himself and he's just kind of talking out loud. And uh, you know, that was just a I remember watching that documentary for the first time, and it was such a jaw-dropping moment, you know, just realizing what's happening. And he ended up being convicted. Right. Absolutely.
SPEAKER_02And so legally, we call those race gesty statements. Just for you people at home, when you hear attorneys talking about race gesty, that means statements not in response to questioning.
Cars, Privacy, And The Fourth Amendment
SPEAKER_04Yeah. And so um with regard to these rights, you know, uh in my experience, a lot of the interaction that people have with law enforcement seems to revolve around a vehicle, right? Uh it's you're getting pulled over for some kind of traffic infraction. Um, and that starts the encounter with police. Now, there are certain rights that are attached to those encounters, right? Absolutely. Okay, so what are those rights? Kind of walk us through them.
SPEAKER_03Right. So there's levels of approved interest, right? So the house is number one. Your house is something where nine times out of ten law enforcement is gonna need a warrant, right, to do some sort of sort search. But a vehicle is deemed much less private, right? You're on the highway, you're on the road, uh, everyone can see you.
SPEAKER_04And and this has to go to your expectation of privacy, which is a big thing in constitutional law. Um, in your home, you you you have a much higher expectation of privacy than you do, say, in your automobile.
SPEAKER_03Absolutely, right? And so, you know, to the Fourth Amendment is what we're talking about, searches and seizures, right? There's exceptions. And there's several that cover the automobile. One appropriately named the automobile exception. And and the basis of that exception is that we're not very creative in the law. Right. Uh vehicles are are are mobile, right? So if there's not time to get a warrant, evidence can be destroyed, people can get away. So they've created this exception that trumps the the warrant requirement of the Fourth Amendment.
SPEAKER_04Right. And so, like one of the exceptions I know is if the officer has probable cause to believe that an offense is being committed. Right. Absolutely. And so uh, and uh, you know, I I was watching a uh video sometimes in my off time, as crazy as it sounds, I watch these videos on YouTube of people being arrested in other states. I don't know why I do that because that's all I do at work. So um, but uh I I was watching this video, and there were these people who were pulled over, and they're being asked these questions about where are you headed, and and you know, they've separated out the driver and the passengers, and they're asking them questions. Where are you going? How do you know him? How do you know him? And it's clear that they're lying. I mean, they're just not the answers, they are completely inconsistent. Um, and so the officer at the scene, you can tell she kind of wants to search that car at that point, but she she really has no reason to. So she's talking to her supervising officer, saying, Well, you know, I these answers are inconsistent, and I think they may have something. And the first thing that the supervisor says is, Well, do you smell any marijuana? And she says, No, which I was impressed with because a lot of times she would just say, right, yeah, I do. But kind of talk to us about that.
SPEAKER_03Right. So the smell of marijuana is is gonna give probable cause for a search, especially you know, in the in a vehicle context. Uh again, the basis for that is that at the time of the exception, there's really no other smell that's recognized as smelling like marijuana. Uh so you can rule out pretty much everything else, right?
SPEAKER_04So there's some argument about now with with hemp being, you know, legal, but well, not much longer because uh Congress just approved the uh the ban on hemp products uh late last night.
SPEAKER_03But so the exception will live on forever, I'm sure. But so probable cause is you know facts or circumstances that would lead a reasonable person to believe that a crime has been committed or is being committed, and possession of marijuana is is a crime. The smell of it is linked to only marijuana, and therefore probable cause exists to go and and try to retrieve it.
SPEAKER_04Yeah, and and we've kind of talked about that before, Scott, where we have clients who, you know, they so in in this case, this video that I was watching on YouTube, they had 25 pounds of of methamphetamine. Right now, to their credit, they weren't smoking marijuana and it didn't smell like marijuana. But it's not uncommon where we see cases where somebody has a large amount of contraband and then they've just smoked a joint right before they hit the highway. And it's like, what were you thinking? Yeah. I mean, you've given them a reason to search that vehicle.
SPEAKER_03Right. Absolutely. And a lot of times they'll say, Well, I smoked three days ago, and that's gonna do it every time as well.
SPEAKER_04Yeah, it's still on their clothes, it's still in the, you know, in the upholstery of the car, or they still have the roach in the ashtray, whatever the case may be. Um, so let's say that the officer does not have probable cause to believe that an offense is being committed. Is there any other way in which they get to search that vehicle? Let's say you say no, you don't have permission to search my vehicle. What happens?
SPEAKER_03Right. So there's there's a lot of things that can happen. I think here um the prominent two avenues would be, right, they would request for some sort of dog to come out.
SPEAKER_04Okay, a chain unit.
SPEAKER_03Right, a drug-sniffing dog, right? And and it has to the touchstone, the benchmark of the Fourth Amendment is reasonableness. So there is kind of a clock that works against them, right? They can't keep you out there for two hours waiting for a dog to show up. Um, again, in Texas, most any offense is an arrestable offense. Um, so a ticket, a class C misdemeanor is an arrestable offense.
SPEAKER_04If they arrest you and there's no one to take your car, depending on you know what the two exceptions are on the ticket, the two uh class C misdemeanors you can't be arrested for. Do you know this?
SPEAKER_02Minor possession?
SPEAKER_04Speeding an open container.
SPEAKER_02Okay.
Refusals, K9 Units, And Time Limits
SPEAKER_04Oh, which is crazy. Yeah. You can't be arrested for those two things. You can be arrested for anything else for running a stop sign, whatever the case may be. Technically, you could be arrested.
SPEAKER_03Right. Absolutely. And there's other ways, there's other exceptions for them to get into the car. Uh, if you're under arrest and your car is on the side of the road, they're under no obligation to leave it there, right?
SPEAKER_02So they don't even have to let you have a friend come and get it.
SPEAKER_04Correct. I've had cases where uh the passenger is there and they don't allow the passenger to take the vehicle. They they just tow it.
SPEAKER_02So so tell us about so when they tow it, what are they gonna do to the car?
SPEAKER_03So when they tow it, they're gonna inventory the car. Uh the inventory search exception. The basis of this is that there's liability when some someone else comes and takes your stuff and they don't want to get sued. So, what they're gonna do, the it's not supposed to be for investigation purposes, but realistically, a lot of times it is. So they're gonna go through your car and they're gonna inventory the contents of it. And in that process, they're gonna open up your glove compartment, they're gonna open up your center console, and they're gonna look in everything they're gonna fix.
SPEAKER_04Your everything everything that you have. Earlier you had talked about the canine unit. Um, if they're walking that dog around the vehicle and the dog signals, um, what happens?
SPEAKER_03So that's gonna give probable cause for a search.
SPEAKER_04And and Scott, I I know you've worked in a rural jurisdiction. Um, do you I would imagine most jurisdiction, including rural jurisdictions, have canine units available.
SPEAKER_02Oh, yeah. Yeah. Now, depending on their there, like so in Medina County, there's only one canine unit. So you you may not be able to get them. And of course, what James says is accurate, they can't keep you on the side of the road for an hour and a half waiting for a drug dog. So if they're not gonna come in a reasonable amount of time, which reasonable hasn't been clearly defined by the courts, but we know two hours is too much, uh, then then uh you're gonna be okay. They're not gonna be able to do it. So, but a lot of what they're hoping, they may know that the they their drug dog is not available. You're gonna freak out. You're gonna say, Well, we're just gonna get the drug dog, okay. You can go ahead and search. And what they tell you is uh it'll take the drug dog a couple hours to get here. Now, you know, so they're not allowed to make you wait a couple hours, but you don't know that. So you say, Well, if it's gonna take a couple hours, go ahead and search.
Inventory Searches And Department Policies
SPEAKER_04Go ahead and search. Um, so that takes us to our break. We'll be back. This is so you got arrested with BRIC Criminal Defense.
SPEAKER_01The attorneys of BRIC Criminal Defense have helped over 5,000 clients move on with their lives. When an arrest or accusation turns your life upside down, we have the knowledge, experience, and integrity to get your life back on track. Traditional legal ethics, modern legal tactics, the best defense possible to get you through the criminal justice system. Search Brick Criminal Defense to see our reviews and find out why so many of our clients have trusted us to fight for death. Brick Criminal Defense, helping our clients move on with their lives.
SPEAKER_04So we were talking about this inventory search, and you know, for this inventory search to apply, it seems like a lot of jurisdictions are using this, um, which may explain why they're they're towing these vehicles instead of letting the passenger drive them. That way they can conduct one of these inventory searches. Um, but they don't just get to do the inventory search just whenever they want. There has to be uh, I think a specific policy in place.
SPEAKER_02So each law enforcement agency has to have an inventory search policy. It doesn't have to be in writing, but it has to, they have to be able to talk about it. So so you can't sit there and say, well, we don't have a policy about inventory searches, but we're gonna search this guy's car because I'm we're gonna win on the motions of the press on that. Okay. So there has to be a standard of what their procedures are for when and when they do not do an inventory search. For instance, some jurisdictions say, well, if the car is sparked safely in a non-public on not on the roadway, we won't tow it. And we will so therefore you don't do an inventory search. So once they've established the policy, they have to follow the policy. And it's not statewide policy or federal policy. It's local, it's local police jurisdiction. That department.
SPEAKER_04So the sheriff's department policy may be different from the local police department policy. It generally is.
SPEAKER_02Right, right, depending on their ability where their impounds are and stuff like that.
SPEAKER_04Yeah. And and the interesting thing is, you know, these inventory searches became much uh more common and prominent um after the the Supreme Court kind of really cut the the legs out from under what we used to call search incident to arrest. I I you may not remember that uh because that was a while back, but um kind of go through that. I was in the middle of all that when the Supreme Court took up.
Arizona v. Gant And Vehicle Searches
SPEAKER_02It was Scott violating people's constitutional rights. Well, it was Arizona the case was Arizona v. Gantt. Uh and and what happened is, and it's interesting because a lot of times as a prosecutor, uh the defense attorneys would say to me, Well, why would my guy agree to a search if he knew he had cocaine in the car? But people are stupid, and Arizona v. Gantt illustrates it. So the the case in Arizona v. Gantt is the the police had they knew this house was they were dealing drugs out of the house. They knocked on the door looking for a guy that had a warrant for this guy, but it was a misdemeanor warrant, but wasn't Gantt. But Gantt answers the door and they they say, is so-and-so here and like he's not here. And they but they ID him and they go back and they realize Gantt had a misdemeanor warrant. Well, you can't go into the house and a misdemeanor warrant, but they kept it in their head, right? They realize next time I see Gantt, he's got a warrant for his arrest. Eventually they get a search warrant for this house and they got everybody outside, they got all kinds of drugs in the house. They got everybody outside laying on the ground, arresting them. And here comes Gant driving back up. Wouldn't you think that and he had drugs in the car? You'd think if you're driving up and you see all your buddies on the front, you'd keep driving. No, Gantt pulls into the driveway and says, What's going on here? They immediately arrested. Why are all my drugs on the line? They arrest him and they and and then they search his car incident to arrest, and there's a bunch of drugs in his car too. Okay.
SPEAKER_04And because it used to be the policy that when you arrested somebody, you could search his whole vehicle. So in and the the the crazy thing was that the logic was, well, you know, we're taking them into custody, they may have something dangerous in the vehicle, right? But you would have these guys that were in custody, they were 20 yards away from their vehicle, they're not able to get back to the vehicle to grab a gun or anything like that.
SPEAKER_02Which is what Scalia said in his opinion. So it's a Scalia opinion, and basically he said there's never been a documented instance once somebody got arrested that they were able to get back into their vehicle. So we're no longer gonna allow them to do a search of the vehicle, search incident to arrest. That night when so I had told all the detectives at SAPD, oh, the Supreme Court took our that Arizona case because they're gonna reverse it. We've had we have years and years of case law saying police are allowed to search a vehicle, search incident to arrest. And I'm like, so clearly they're gonna reverse the Arizona courts, but that's not what they did. Scalia wrote this opinion saying there's never been a there's no reason to search a vehicle once you've got a guy arrested in the back of your car. And so that night I was down talking to Rope about to detectives about what are we gonna do now? And I said, Well, maybe you can leave them in the car and then you can still start. And then the detective's like, we're not gonna enrest the officer just so we can get a search of the vehicle. Right, right. And so what ended up happening, this is how the sausage is made. Yeah, this is how the sausage is made. I've been I've been told nobody's interested in how the sausage is made. But but but uh anyway, so so so what we what the agency said, well, we're just gonna do inventory searches now. Well, when we when we pulled, when we now they wouldn't have been able to do it on Gantt though, because he was in his driveway. Right, right.
SPEAKER_04But that that's not how that that's one of the opinions where that the Supreme Court actually, you know, it extended our our rights and gave us additional protections, which you know, in the realm of criminal law, um, usually the defense doesn't always get the uh the outcome that we want from the U.S. Right.
SPEAKER_02And so it was a common sense opinion because it was just but we had been so ingrained that you can search a car, search incident to arrest, that it just never occurred to us that that this would change. But that's the interesting thing about how sometimes laws change.
SPEAKER_04And and now as a consequence, we have more of these inventory searches where vehicles are getting towed just so they can conduct that inventory search. Right.
Pretext Stops And Good-Faith Mistakes
SPEAKER_02And so remember, whenever you're talking about um search and seizure, uh a lot of our clients say, well, I I had an expired registration, but they pulled me over because they saw me coming from a place that's selling drugs. Pretext doesn't matter. There's no such thing, it doesn't matter that the officer had another reason why they did it as long as there's a legit reason to do it. So if you have an expired registration and you know damn well they're pulling you over because you're coming from a drug house, we don't win because we say they didn't really pull me over for the expired registration. It doesn't matter. As long as they had the reason to, they win. Absolutely.
SPEAKER_03And I think it brings up a good point with the Gantt conversation that, you know, uh they can claim one exception and it not apply, but as long as some exception applies, it's likely that the search will be saved.
SPEAKER_04Well, that, and now they have like a good faith, you know, exception to where, you know, the the officer, so what what's been happening lately is there was this decision, I believe it was out of North Carolina, um, where the officer said he observed uh a violation, a traffic violation, and that gave him reasonable suspicion to stop. It turned out there was no traffic violation. And the courts have said, well, but in his head at that moment, he genuinely felt there was a traffic violation. That's good enough for us. I actually had that case cited against me recently where I had a video that showed my client did not commit a traffic violation. Um, and you know, the officer had this traffic violation listed in the report, and the video showed he didn't commit that. And the prosecutor says, Well, here's his case out of the Supreme Court. Um, you know, it's still something to be argued, but but because there's they still can't lie about it.
SPEAKER_02It still has to be truthful. I mean, if they're lying about, if they say you had a broken tail light and it's not there's not a broken tail light, then we still may win that argument. I understand what you're saying about that case, but not I I think we could still win that argument. You may feel differently.
SPEAKER_03No, I agree. I think it again, the the touchdown of the Fourth Amendment is reasonableness. It's it's unreasonable to say that a headlight or a tail light is is busted when it is in fact not.
SPEAKER_04Yeah. So, you know, we're we're coming up on the holiday season. So uh next week is gonna be Thanksgiving um and a lot of families are gonna get together, they're gonna watch that Dallas Cowboys game, you know, uh people are gonna probably have a few drinks. Um, you know, shortly thereafter, uh the Texas Longhorns are gonna beat the Aggies. Everybody's gonna go crazy and celebrate uh and maybe have a few too many drinks. And some people, even though they shouldn't be doing this, our advice is always you need to call an Uber. Some people are gonna drive home. Okay. So uh they're gonna get pulled over. What's your advice? Kind of walk somebody through a stop from beginning to end. What should they be doing?
Holiday DWI Stops: What To Do
SPEAKER_03Right. So what I would say is you're gonna be pulled over for hopefully some sort of traffic violation. Um, and the cop is gonna approach either the driver's side window or the or the passenger window, right? Um, they're gonna ask you basic questions, where you're coming from, where you're going to. Uh should you say, Oh, I'm coming from a bar.
SPEAKER_04I just had five drinks.
SPEAKER_03I would advise against that. Um you really don't need to tell them where you're coming from and where you're going to, although obviously it's gonna raise suspicion. Um it's good to cooperate, but it's also better to protect yourself. Uh if you know that you're inebriated, the the best thing to do would be to play it smart, in my opinion. And play it smart means means don't incriminate yourself.
SPEAKER_04Um, you know, um What about when they ask you, well, um I just want you to perform these tests out on the side of the road. Um they're they're simple tests. How should you handle that?
SPEAKER_03Well, the tests, in my opinion, are not simple at all. I think they're designed to to make you fail. Uh, I don't think that many sober people could successfully do them. And it's gonna be used as evidence against you should charges be be brought. Uh if you don't do the tests, again, it's gonna they're gonna use it against you as some sort of refusal, evidence that uh you're intoxicated.
SPEAKER_04And you're gonna be arrested. And you're gonna be arrested. But if you do the tests and you fail the test, you're gonna be arrested. And now you've given evidence.
SPEAKER_03Absolutely. Catch 22. And and some of those tests, some of those videos can be really, really harmful for a case.
SPEAKER_04And when it comes to uh, hey, I want you to blow in this machine or I want you to give blood, you know, kind of what's the advice on that?
SPEAKER_03Well, there's kind of different schools of thought. I know I've talked with Scott about this before. It's a controversial issue. Right. Um some of these intoxilizers, depending on where you are, you know, like any machine, they have to be- And this is the breath test, the intoxilizer. Correct. You know, they have to be calibrated, they have to, you know, like a like an engine. You need to get your oil changed. Uh and sometimes they're not. Um in a case where the intoxilizer isn't properly calibrated or properly maintained, right, the the breath can be suppressed. Also, in circumstances where the operator of the machine isn't qualified to do it, it it it it's been suppressed, it can be suppressed, but you have no way of knowing that. Going into it. Going into it.
SPEAKER_04You can't ask the officer when's the last time this was calibrated.
SPEAKER_02Plus, the other thing you got to know that you probably so in Bear County, if you refuse to blow, they're gonna take your blood. Right. And we have an easier time because not only about the intoxilizer being calibrated, but jurors don't trust the machine like they do a blood test. So we struggle to win on blood test cases. Actually, we it's a very hard shot to when they took your blood because people trust blood. People don't really trust the intoxilizer. So the question is well, if you refuse to blow and they're gonna draw your blood, should you just blow because we have a better chance at fighting? But you don't like so in, but in other jurisdictions like Guadalupe County and Medina County, they don't take your blood if you don't blow. So then you should refuse to blow, but you have no way of knowing that, right? So I don't I'm not sure what what do we tell. So if you're in San Antonio and you refuse to blow, they are gonna get a warrant and they're gonna take your blood.
Breath vs Blood Tests And No-Refusal
SPEAKER_04They need to well, and and in some of these smaller counties, so it used to be the case, like in these uh smaller areas like Wilson County, Ascosa County. I used to be able to tell my clients 100%, uh, don't blow, they they can't get the blood draw warrant, you're good to go. Right. But that's not the case anymore. Now they have like no refusal, weekends, weekends, and and things like that, where they'll have a judge ready to go, especially around the holidays. So it's hard to have kind of a blanket policy.
SPEAKER_02Exactly right because uh nowadays a lot of these jurisdictions are gonna get your blank because you're allowed as a prosecutor to argue that that if he was so sober, why didn't he just do the tests? We're allowed to make that argument. And so I and we've won cases where people look pretty darn good on the videos, okay? But the problem is somebody who's drink been drinking isn't a good judge of how good they're gonna look. Right. They're they're not a good judge of their own cool.
SPEAKER_04Let me do these tests, and they're not really it's kind of like when I'm drinking, and I know I'm a good dancer, and then later on, you know, people tell me uh how I did on the dance floor. Yeah. Yeah, it's not as impressive as the Elaine. You did the Elaine. Exactly. Exactly. So um, and so this holiday season, you know, we we want you all to be safe. We want you all to be with your families, and we want you to make it to Christmas, okay? So uh don't drink and drive. If you if you've had anything to drink, call an Uber or get a relative to drive you home. Um, but if you do find yourselves in trouble, uh something happens, you get a DWI, you get uh into a fight, you know, with a relative over the Cowboys game, uh, give us a call at Brick Criminal Defense. We're we're happy to help. Uh our goal is to get your life back on track and to get the least possible interference to your life. Uh, you can reach us at 210-874-5080. When you call, uh, you're gonna get one of our fantastic attorneys like Mr. Simpson or Mr. Heath or myself or Matt Allen uh or Jacob Lindbergh. So uh take care of each other during the holidays. But if you need uh some help, don't hesitate to give us a call. Have a good season.
SPEAKER_00Thanks for listening to So You Got Arrested. If you found this podcast helpful, share it with someone who needs to hear it. For more legal insights and real talk from the front lines of the Texas justice system, follow us and subscribe. And remember, Brick Criminal Defense has your back. For more information, visit us at brckdefense.com.