Texas DWI Attorneys Boatwright & Hamilton have filed this Motion on Texas DWI arrests:
MOTION TO EXCLUDE TEXAS DWI EVIDENCE OF REFUSAL TO TAKE CHEMICAL
TEST BASED ON INVOCATION OF TEXAS DWI RIGHT TO ASSISTANCE OF COUNSEL
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes Texas DWI Defendant in the above-styled and numbered cause, and respectfully moves this Court to exclude evidence of the defendant's alleged refusal to take a Texas DWI chemical test to determine alcohol content in his body, and for good cause shows the following:
1. On or about January 15, 2005, the Texas DWI defendant was arrested for Texas DWI Driving While Intoxicated, 3rd offense and taken to the Lubbock County Jail. The defendant was then interrogated and asked to take a breath sample to determine the alcohol content in his body. In response to the request, the defendant asked to speak to a Texas DWI lawyer. The Texas DWI defendant's invocation of his right to assistance of counsel was denied.
2. The Texas DWI Defendant had a right under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article 1, Sections 10 and 19 of the Texas Constitution to consult with a lawyer. The refusal to allow the defendant to consult with a Texas DWI lawyer also violated his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966); Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L.Ed.2d 378 (1981).
3. When the Texas DWI defendant's refusal to submit to a Texas DWI breath sample is based upon a request for assistance of Texas DWI counsel in deciding whether to submit to chemical testing, the defendant's refusal should be suppressed. A defendant's invocation of his right to an Texas DWI attorney cannot be used as evidence of or inference of guilt. See Rule 513(a), Tex R. Crim. Evid., Bruno v. Rushden, 721 F.2d 1193 (Th Cir. 1983). It is improper to inform a jury of the Defendant's exercise of his constitutional rights. Gathright v. State, 698 S.W.2d 260 (Tex. App. - Fort Worth 1985); Rezac v. State, 722 S.W.2d 32 (Tex. App. - Dallas 1986).
4. A request for Texas DWI counsel demonstrates that the Texas DWI defendant was able to understand his rights and was not incoherent, confused, or unbalanced. A refusal to submit to chemical testing premised on the defendant's request for counsel has no probative value with respect to guilt and should not be admitted as evidence. See TRE 401, Wainwright v. Greenfield, 106 S.Ct. 634, 642 (1986).
WHEREFORE, PREMISES CONSIDERED, Texas DWI Defendant prays that this Motion be granted and any evidence of Defendant's alleged refusal to take a breath sample be excluded.
Respectfully submitted,
Boatwright & Hamilton, LLP
1005 Broadway
Lubbock, TX 79401
Texas DWI Attorney
1-800-DIAL-DWI
CALL 1-800-DIAL-DWI (ext. 806) NOW TO DISCUSS YOUR WEST TEXAS DWI DRUNK DRIVING CASE OR
