In Virginia, it is a Catch-22 for a driving while intoxicated suspect to take or refuse the breath or blood test. If a DWI arrestee has enough alcohol in his or her blood, a breath or blood test will help the prosecution prove its case. If the DWI arrestee is convicted for refusing the breath or blood test, s/he will lose Virginia driving privileges for a year for a first offense, with no restricted privileges during that year, followed by an extra year of no driving (with eligibility to apply for restricted driving privileges) if also convicted for an accompanying first-time DWI charge.

Recently, I went to trial in Virginia General District Court for a client charged with DWI and refusal. The refusal evidence against my client was strong. The DWI evidence included various double-edged swords, including a claim of significant alcohol odor after a moving violation and an incident video showing my client’s coordination not too bad other than unsteadiness on the one-leg stand, but showing a lot of verbal rambling by my client.

We ended up winning the DWI trial and losing the refusal trial. Some defendants prefer to risk a refusal conviction to avoid a DWI conviction.

Two of our saving graces were my client’s making clear to the police officer early on that he had serious knee problems, and his good friend confirming the same with relevant and credible detail.

Our case would have been stronger had my client declined to speak with the police officer and declined field sobriety tests. Most of my DWI clients do not so decline. Silence is golden when one is a police suspect or defendant. Field sobriety tests will harm even the most sober person and are junk science. Moreover, by giving less data — by words and behavior — to the police, a suspect is at less risk for the police to mis-report that data.

We won against the DWI charge. What would have happened if my client had not told the police officer about his bad knees and if he did not have a reliable witness ready to appear in court? The outcome much more likely would have been a guilty verdict.