If I'm Pulled Over for DWI in Texas, Do I Have to Talk to the Police Officer?


We've all heard this common refrain from cop shows and legal dramas over the years. But while most people understand that they have certain rights guaranteed to them by the constitution, many are unclear on just how far those rights go.

The Fifth Amendment to the United States Constitution protects you from incriminating yourself. This protection prevents you from being arrested or punished by the government for refusing to make a statement that may indicate your guilt. The Fifth Amendment is where the common colloquialism of “pleading the fifth” comes from. But the right to remain silent isn't limitless; you can be required to give biographical information or prove to law enforcement that you have a valid driver's license. It is critical to understand your rights if you have been stopped for suspicion of driving under the influence in Texas.

Fifth Amendment Protection Against Self-Incrimination in Texas

The Fifth Amendment provides some of the strongest protections for anyone charged with a crime. The amendment protects you against self-incrimination and bars the government from charging you with a crime again after you are acquitted. The full text of the amendment reads:


While the fifth amendment protections against self-incrimination are broad, they are not without limits. In 2000, the Supreme Court held that the protections of the Fifth Amendment only apply to communication that is testimonial, incriminating, and compelled. The court differentiated this sort of communication from identifying information like a driver's name and current address. The most common example is a phrase most people who have ever been pulled over are probably familiar with: “do you know why I pulled you over?” This question is essentially fishing for an admission of a crime, and the Fifth Amendment protects you from having to answer it.

Texas Law on the Failure to Identify

Many states, including Texas, make it a crime to refuse to identify yourself to law enforcement during traffic stops and DWI investigations. According to the Texas Penal Code, Failure to Identify is a misdemeanor. There are two ways to violate the Failure to Identify statute:

  • If you have been arrested, it is illegal to refuse to provide your name, residence, or date of birth.
  • If you have been arrested, detained, or are a witness to a crime, it is illegal to give a false name, residence, or date of birth.

Take note that while refusing to provide biographical information is a crime if you're under arrest, it is not a crime if you have been detained. It is also worth noting that it is always illegal to provide false information to a law enforcement officer.

Penalties for a Conviction for Failure to Identify

A conviction for Failure to Identify can be a Class A, Class B, or Class C misdemeanor. Generally speaking, failure to identify is a Class C misdemeanor if you refuse to identify yourself after being arrested and is a Class B misdemeanor if you knowingly give law enforcement a false name, address, or date of birth.

However, the penalties are stiffer if you are a “fugitive from justice” at the time the crime is committed. A fugitive from justice is generally someone who has an active warrant against them. A fugitive from justice that refuses to give identifying information after an arrest will be charged with a Class B misdemeanor. A fugitive from justice that gives false or fictitious identifying information will be charged with a Class A misdemeanor.

Class C misdemeanors have the lowest penalties. A Class C misdemeanor carries no jail time and a maximum fine of $500. A Class B conviction carries a jail sentence of up to 180 days as well as a maximum fine of $2,000. Class A is the most serious of the three; it carries a maximum sentence of 1 year in county jail as well as a fine for $4,000.

Examples of Fifth Amendment Right Violations

To better understand these concepts, consider the following examples illustrate when Fifth Amendment rights are in violation or not in violation.

Fifth Amendment Rights Are Violated

You are driving down a public street when a police officer behind you pulls you over. When the officer approaches you and requests your driver's license and registration, you comply by handing him the documents. The officer comments that he detects the smell of alcohol coming from your vehicle, and seems irritated when you don't respond. The officer then asks if you know why he pulled you over. When you refuse to answer, the officer asks the same question again, clearly hoping that you will implicate yourself for a DWI. When you respond by asking if you are free to go, the officer orders you out of the vehicle and arrests you for obstruction of justice.

In this situation, your Fifth Amendment rights have been violated. You complied with the officer's requests regarding your personal information and the proof that you were driving the vehicle legally. You were under no obligation to respond to the statement about being far from home, and you are not required to speculate on what offense the officer believes you have committed. These are both examples of testimonial communications covered by the Fifth Amendment.

Fifth Amendment Rights Are Not Violated

You are driving down a public street when a police officer pulls up behind you and turns the lights on. The police officer pulls you over and approaches your vehicle. When you roll down your window, the officer says, “Do you have any idea how fast you were going back there?” You don't say a word, and when the officer asks to see your license and registration you refuse to provide it. Irritated, the officer asks for your name an date of birth. You knowingly provide a fake name and date of birth in an attempt to deceive the law enforcement officer because you currently have a warrant out for your arrest. When the officer determines that you have lied about your background information, he arrests you for failure to identify.

While you were under no obligation to respond to the officer's question about how fast you were going, the Fifth Amendment does not protect you when you refuse to provide the officer your license and registration. Likewise, it does not protect you if you give a false name or date of birth. In this scenario, you could be charged with a Class A misdemeanor and face up to a year in county jail as well as a maximum fine of $4,000.

Tips for Texas Traffic Stops

While we have explained what your rights are during a traffic stop, it is not always in your best interests to completely refuse to cooperate. In some instances, the hassle and unwanted attention from law enforcement may outweigh simply complying with their requests. These are our suggestions for handling a Texas traffic stop:

Stay Calm

This may be easier said than done given how stressful interacting with police can be. But staying calm is one of the best steps you can take to keep a traffic stop from turning into an arrest. If you act jumpy or unusual, the officer may use this behavior to begin an investigation into DWI.

Don't be Rude

You will get more flies with honey than vinegar, and you'll get fewer tickets if you are respectful to the police. It can be hard for some people not to be short with law enforcement, but a combative attitude won't help you.

Say as Little as Possible

Anything you say can be used against you, and you better believe it will be. To avoid inviting unnecessary suspicion or give an officer an excuse to investigate further, limit your answers to the mandatory questions.

Don't Give Permission to Search

If the police want to search your car, make them jump through all the hoops. Officers can lie to you, and many will bluff you about having enough evidence to get a warrant. If the police want to tear your car apart don't make it easy for them. If law enforcement finds an open container of alcohol in your vehicle, it can be used against you as evidence that you were intoxicated.

A Defense Attorney that will Defend your Constitutional Rights

Have you been arrested and charged with DWI in Texas? Looking for an attorney that will aggressively defend your constitutional rights? Doug Murphy Law Firm, P.C. can help. Doug Murphy is one of only two Board Certified experts in both DWI defense law as well as criminal defense law. An experienced trial lawyer with years of experience in front of Texas juries, Doug Murphy understands that the stakes for you are very high. If you want to discuss the merits of your case with one of the top defense attorneys in Texas, contact the Doug Murphy Law Firm, P.C. today for your free consultation.

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