Driving While Intoxicated Case Law Update - Texas District ...

where police officer noticed severalsrgns of intoxication including alcoholic odor coming from
vehicle, driver's refusal to make eye contact with officer , driver's refusal to roll down window,
driver's response that he had consumed two to four beers when asked if he had been drinking, and
driver's refusal to take field sobriefy fesfs. The totality of the circumstances r's substantial evidence
of probable cause for Nielsenb arresf.
Lonsdafe v. State. 2006 WL 2480342 (Tex.App.-El Paso, 2006, pet. ref'd).
Defendant challenged the admission of testimony that he refused to perform the field sobriefy fesfs.
He complains that the evidence was irrelevant, and if relevant, more prejudicial than probative. He
also points to violations of his constitutional rights, arguing that the invocation of the right to
counsel, the rightto remain silent, and the right againsf unreasonable search and seizure may not
be relied upon as evidence of guilt. The Court rejecfs fhese arguments and finds that a defendant's
refusalto perform FSf's is relevant and admissible. Court further held that itwas proper argument
that the jury could infer that his refusalwas evidence of intoxication.
State v. Garrett. 22 S.W. 3d 650 (Tex.App.-Austin, 2000, no pet.).
Defendant's argltment-which prevailed in the trial court- was that c/assic indicators of inebriation
that would be present in a normal DWI arrest were absent in this case. We note that many of these
factors such as pertormance on field sobriety fesfs, urere absent as a direct result of defendant's
conduct, i.e., his refusalto participate in any of these tests. While we regard these missrng factors
as a part of the totality of the circumstances, they are only a part, and where many of the missing
factors are due to a defendant's conduct, we believe that the officers could reasonably consider
that conduct as part of the totality of the circumstances that provided probable cause to arrest.
Dawkins v. State. 822 S.W. 2d 668, 671 (Tex.App.-Waco,1991, pet. ref'd).
ln prosecution for felony driving while intoxicated, admrssion of video tape which showed
defendant's refusal to submit to sobriety tests requiring him to recite alphabet and to count aloud
was not violation of defendant's constitutional privilege against self-incrimination. Evidence that
defendant refused to submit to sobriety fesfs drd not constitute violation of defendant's
constitutional right to be free from self-incrimination where there was no indication that defendant
was compelled to perform the sobriety tests.
Barraza v. State. 733 S.W. 2d 379 (Tex.App.-Corpus Christi, 1987, pet. granted) atfd 790 S.W.
2d 654 (Tex.Crim.App.June 20, 1 990).
Arequestto perform afield sobrietytest is sufficiently simitarto a requestto pertorm a breathalyzer
fesf so as to allow an analogy to the law governing the admissibility of evidence of a suspecf's
refusal to take a breathalyzer test. Both types of fesfs are designed fo fesf the sobriety of the
suspecf. We can discern no reason to distinguish between them with regard to the admissibility
of refusal to perform the fesfs.
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