Can I speak with an attorney before answering questions during a DWI stop?
DWI is different that most other crimes in the State of Texas in that a person suspected of drunk driving DOES NOT have a right to an attorney while being initially questioned by a police officer. Under Texas law, a citizens right to counsel does not attach until the police officer decides to bring formal charges against the person. Therefore, you do not have a right, except under very specific circumstances, to speak with an attorney when the officer is initially questioning you or before you do sobriety tests or even give a breath or blood test.
For a review of the law concerning your right to counsel in a DWI follow the link below.
McCambrige v. State, 778 S.W.2d 70 (Tex. Crim. App. 1989). The Sixth Amendment right to counsel attaches at the critical stage in the criminal process; this does not occur until formal charge are brought against a suspect. This is the most commonly cited case among all Texas appellate court cases addressing this issue
Garcia v. State, 787 S.W. 2d 957 (Tex. Crim. App. 1990). Because formal charges had not been filed against defendant foe driving while intoxicated at the time he was asked to take a breath test and perform videotaped field sobriety exercises, the defendant's (Sixth Amendment) right to counsel had not attached and thus there was no violation of that right.
McRae v. State, 152 S.W.2d 739 (Tex. App.--Houston {1st Dist.} 2004, pet, ref'd). Routine questioning at traffic stops regarding drinking or use of intoxicants is not custodial interrogation for Miranda purposes until formal arrest is made. the existence of probable cause does not convert an investigation into a custodial arrest, nor does that fact that the Defendant was the focus of a criminal investigation does not convert a roadside stop into an arrest. (Officer had not indicated to Defendant that he intended to arrest Defendant for DWI until after the field sobriety tests and after the Defendant admitted drinking to the officer).
