Tony Romo Got Bad Advice
Tony Romo was recently arrested for operating while impaired in Wisconsin. The body camera footage told us a lot. Bad advice gives Romo little wiggle room.
During Tony Romo’s Operating While Intoxicated (OWI) stop, he refused to take any type of breath test.
“Oh no, we’re not doing that.” Romo said. “I’ve heard from multiple lawyers, don’t ever do that, so we’re not going to do that.”
I don’t know what lawyers Romo heard from, but they probably weren’t talking about the machine in the station, and they probably weren’t talking about Wisconsin. Wisconsin is the only state in the country where a first offense OWI (Often called Driving Under the Influence in other states) is a civil charge, not a criminal one. Because of that fact, Romo had nothing to lose by taking the chemical breath test.
Refusing to take the test is an automatic suspended license under implied consent laws. If you didn’t know, when you got your driver’s license, regardless of state, you agreed to an implied consent law that gives permission to submit to a chemical sample for suspicion of driving under the influence of alcohol or other illicit substances. Basically, if you’re being investigated for OWI/DUI and you refuse to provide a breath, blood, or urine sample, you automatically have your license suspended.
Some defense attorneys argue that if you know you’re going to blow above the legal limit, you should refuse all of the tests. Refuse the field sobriety tests, preliminary breath test, and the breathalyzer at the police station. That way the state doesn’t have any physical evidence you were operating a vehicle above the legal limit. You’ll still have your license suspended, but at least your lawyer can try and plead down to a non-criminal traffic ticket, instead of giving you a criminal record.
In Romo’s case, the criminal record concern isn’t there, since Wisconsin is extremely soft on first offense drunk driving charges. Still, even in states where a first OWI/DUI is taken more seriously, refusing all of the tests might not be the best defense. In fact, in my eight years of law enforcement experience, most defense attorneys advised their clients to submit to the breath test at the station.
They’d still advise to refuse the field sobriety tests since there’s no advantage in taking a no win test; but they’d say to submit to the breathalyzer machine at the police station. That way the defense attorney could attack the way the test was administered, the machine, and/or the results. There’s a lot more steps for the police officer that way. The more steps, the more opportunities for a misstep.
-The Potential Missteps-
Defense attorneys often argue about the observation period. In Washington I had to watch the suspect for 20 uninterrupted minutes before I could get them on the machine. I couldn’t let them go to the bathroom. I couldn’t let them put anything in their mouth (Chewing gum, water, etc.). I couldn’t step out of the room for a second, or look at my cell phone. We would sit directly in front of a camera, next to the BAC machine, and I’d watch them for 20 minutes.
Defense attorneys also liked to argue over the machine itself. When was the last standard maintenance performed? Did the machine properly go through the self diagnostic it’s supposed to before each test? Are there any error codes? Any of those things could get the results thrown out.
The defense attorney could also attack the results themselves. The breathalyzer always takes two samples of breath, meaning you have to blow into it twice. If the first sample and the second sample are extremely far apart, the attorney can argue the machine obviously can’t give an accurate reading.
Even if the samples are close, as long as they’re on the border of the legal limit, .08 in almost every state, the lawyer can argue the results aren’t definitive enough.
Let’s say the first sample is .082 and the second sample is .085. The attorney can argue that their client was actually under the .08 limit, because the test clearly is off by .003. So a third sample could reasonably have had their client at a .079. From my own experiences, I can tell you that the last digit of the sample can fluctuate pretty drastically. That’s why some states don’t allow the last digit to be admissible. In those states, the results from my example would have simply been .08 and .08, which would give the attorney no space to argue.
-How to REALLY Get Away With It-
The best way to get away with OWI/DUI is to not do it in the first place. If you’re planning to go out and have a few drinks, have a plan. Uber/Lyft, have a designated driver, public transportation, etc. In Romo’s case, he has an estimated net worth of $80 Million. So spring for the UberXL!
Having said that, everybody has the right to a defense and a fair trial. From my observations, Romo was clearly drunk. He didn’t just fail the Field Sobriety Tests, but failed them miserably. If he had better advice, maybe he would have gotten away with it too.
Still could, in theory.
-Written by Seattle Mike