A: Contrary to popular belief, successfully served deferred adjudication probation cannot be expunged, except in the case of certain class C misdemeanor offenses. However, under a recent Texas statute, you may well be eligible for an order of nondisclosure.

Q: The police officer who arrested me failed to read me the Miranda rights. What effect does that have on my case?

A: An officer's failure to administer Miranda rights is not necessarily fatal to the prosecutor's case. Generally, the failure to read the rights will prevent the officer from being able to repeat in court any oral statement you might have made after being arrested. Of course that could hurt the prosecutor's case and help your case.

Unlike the law in most states, Texas law generally requires confessions to be made in writing. If the officer did not intend to go to the trouble of obtaining a written statement, he or she may have decided that the Miranda warning was a waste of time and skipped it. Nonetheless, most officers will read the Miranda rights at some point after making the arrest.

Q: If I am arrested for driving while intoxicated and the officer requests a breath test, should I give one?

A: Despite the old saying, "Never say never", it is safe to assert that a DWI arrestee never should take a breath test.

First, if you blow at or above the legal limit of 0.08 grams of alcohol per 210 liters of breath, you will have given the prosecutor a supplemental theory of prosecution in addition to the traditional theory that you lost the normal use of your mental or physical faculties through the intake of alcohol into your body. Using the breath test theory of DWI, the prosecutor will argue that the State does not have to prove that you look, act, or sound intoxicated; only that you have the requisite amount of alcohol in your lungs. Moreover, the prosecutor can present both theories of DWI at trial, then urge the jury to pick whichever one it likes best. By taking the breath test, you essentially have doubled the State's chances of convicting you and made your defense attorney's job twice as hard.

Second, the certified breath test instrument in Texas, the Intoxilyzer 5000, does not measure up to the standards of accuracy set by the gas chromatograph blood testing equipment typically available in hospitals and crime laboratories. If you truly feel that you are not intoxicated and would pass an alcohol test, it is smarter to request a blood test rather than submit to a breath test. Remember however, that the test might reveal drugs in your system other than alcohol. A DWI in Texas can be the result of alcohol, drugs, or a combination of alcohol and drugs. If your blood alcohol content is less than 0.08 grams per 100 milliliters of blood, but shows other drugs in your system, the State still may be able to make its case. Likewise, if you take the breath test and pass it, but nonetheless show outward signs of intoxication on the field sobriety tests or otherwise, the prosecutor still may pursue your case as a drug DWI or combination alcohol/drug DWI and try to convict you with the traditional "loss of normal use of faculties" theory of the offense.

Q: When the arresting officer in my DWI case asked for a breath test, I insisted on consulting an attorney first. The officer did not allow me to contact an attorney. Was his action justified under the law?

A: Under the current state of the law, yes. Texas courts have held that a DWI arrestee is not entitled to the advice of counsel in making the decision whether to take an alcohol test.

It should be noted that your failure to take the test in this circumstance is considered an alcohol test refusal resulting in a possible suspension of your driver's license. However, in the event of a DWI trial your attorney can argue that you really weren't refusing the test, you just wanted to make a fully informed decision on an obviously serious legal matter. This will be more understandable to the jury than an outright refusal.

Q: Why didn't the arresting officer in my DWI case give me the opportunity to take a blood test rather than a breath test?

A: Under Texas law, the officer gets to choose which test to offer. Most of the time the officer will offer the breath test and will not comply with a request for a blood test. Sometimes, however, the officer will give you the choice of either. Rarely, the officer will request a blood test to the exclusion of a breath test. If the officer offers a certain type of test and you insist on the other type, the officer may count that as an alcohol test refusal resulting in a possible suspension of your driver's license.

Q: If I am stopped for a traffic violation and the law enforcement officer asks to have a look inside my vehicle, must I agree?

A: By no means! Without using the formal wording, the officer is asking you to give up your constitutional right to be free of an unlawful search and seizure. The Fourth Amendment to the U.S. Constitution states that residents of this country have the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". All states have similar constitutional and statutory provisions providing protection against searches made without probable cause.

However, the courts have held that you can be stripped of this important right if you voluntarily consent to an officer's request to search. The officer is not required to have a reason to request the search of your vehicle. You may fit a profile known to law enforcement, or the officer may just be suspicious of your looks. What's more, prior to asking for consent, the officer does not have to inform you that you have the right to withhold consent. You are on your own in standing up to the request.

Q: Why shouldn't I consent to a search of my vehicle?

A: If you have contraband in the vehicle and consent to the search, you have just forfeited your right to contest the lawfulness of the search in court. If you refuse to consent and the officer searches without probable cause to believe that you are engaging in criminal activity, the evidence will not be admissible in court and the State's case may well fail. It is surprising how many people consent to a search knowing that it likely will result in the discovery of unlawful drugs or other contraband.

If you have nothing to hide, your consent will not lead to a criminal prosecution, but it will serve as a reminder of the reason the founders of this nation enacted the Fourth Amendment. You probably will be detained for a significant period of time while the officer or officers systematically rummage through your vehicle and belongings. Drug-searching dogs may be called in to assist, lengthening the detention. Your vehicle might be taken to the local police station for additional examination. If you try to retract the consent, the retraction may well be ignored. Upon completion of the search, you will be left with the task of cleaning up the mess and possibly repairing damage to your vehicle or belongings. It is not a pleasant experience. What to do, As the saying goes, "Just say, No!"