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Practical Considerations of the Law: The Right to Remain Silent

May 12, 2017

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Practical Matters of the Law: Alcohol Test. Take it or Not?

August 23, 2017

 

 Author’s Note: Here at Warrior Law, we are adamantly opposed to intoxicated driving and the toll it too often takes on innocents. That said, there is a difference between being drunk and having the residue of a couple alcoholic drinks on your breath. While the best policy is no drinking at all when you must drive later, sometimes that doesn’t happen. This blog provides food for thought should you need to make legally significant decisions along the roadside.

 

"Happy Birthday to youuuuuuuuuu.” After everyone cheers the honoree with a toast and having dutifully downed your too heavily poured drink, you and your significant other join the first wave of departures. Perhaps you can get home in time to catch the latest Game of Thrones episode. Only three blocks from the couch you bump your cellphone off the console.  After fishing it off the car floor with only a minor steering correction needed to recover from your momentary distraction, you see blue lights in the rear view. You are being pulled over for the first time in your life. It really was two drinks, right? I can kind of feel it though. Damn.  

 

You’ve seen the routine countless times on ‘Cops’. The polite officer asks you for your license and registration while positioning his nose kissing-close to yours through the rolled down window. Your drinking earlier in the evening soon becomes a topic of conversation. You are asked to step out of the vehicle. Having read my previous post you politely decline to do the dancing bear routine in the headlights for the camera. You’ve considered it, but have decided that saying the alphabet in the key of B, while skipping all the vowels and doing ‘The Sprinkler’ for precisely thirty-three seconds with one eye closed, is not one of your late evening specialties. The officer asks you again, but you hold firm in your refusal. The worst he can do is point out that you refused should you go to court.

 

The officer gives a long sigh, then informs you that you must come with him to blow into an intoxilizer device. You wonder about that. Do you? Do you really? Can you be forced to?

 

The answer in this state and in this scenario, is no, you do not have to, but such a decision comes with consequences. Here’s the rule. A first-time refusal to take a breath or blood test for alcohol or other substances by someone held for probable cause of driving while impaired, and after being warned that their license would be suspended as a result, is not a criminal offense but will incur a twelve-month suspension of driving privileges. However, a second refusal earns an eighteen-month suspension and is a misdemeanor.


To fully develop the thinking on this subject, it’s best to recognize that in driving while impaired cases there are two legal processes involved. The first is administrative and revolves around the issue of your driver’s license. The second is criminal and is all about whether you are guilty of a crime and what is going to be done to you if you are. The administrative and criminal proceedings are separate and distinct.

 

The administrative is relatively automatic. Upon refusal to take the breath or alcohol test, your license will be suspended effective ten days from the arrest. During that time, you can apply for a hardship adjustment to the license suspension. If approved, and they are almost always approved, a person with a suspended license for refusing to submit to testing will be allowed to drive to work, school, and other necessary activities. You can also challenge the validity of the arrest by demanding a hearing. While not impossible, your chances of winning in such a hearing are not great barring some unusual procedural failure on the police’s part (you only came to the officer’s attention because he rear-ended you at a red light).

 

The criminal proceeding is the court process to manage your case from initial appearance to trial and sentencing if required. It is in this process that you might try to get your charges dropped or reduced, or to get your case diverted to something other than a conviction for driving under the influence.  

 

The evidence to be available in the criminal process is what the decision to refuse to submit to testing (and the dancing bear) is all about. Guilty or not guilty verdicts are determined mostly by the evidence, and as far as the defendant is concerned, less of it is usually better. By refusing to submit to testing and field exercises you would deny the prosecution evidence that might potentially be used against you at trial.

 

Don’t do the officer’s choreographed road dance? There will be no video of you tripping on the curb, or on loose gravel, or of one of your high heels coming off as you move toward center stage in the headlights. Participate as requested and there very well might be.  

 

Take the alcohol test and fail it and you have provided very strong evidence of your guilt. Refuse the alcohol test? Then it is for the prosecutor, judge or jurors to guess what your blood alcohol content really was leaving the door open to reasonable doubt. Prosecutors like certainties. Give them reason to question the strength of their case and you have an improved position from which to bargain from. Both of these considerations should be at the forefront of your thinking when contemplating your personal policy toward this potentially consequential decision.

 

My advice? There isn’t much upside for you to participate in the dancing bear. The officer has already pulled you over and suspects you are under the influence. You are probably already secretly under arrest. There is no penalty for refusing to do the roadside exercises other than an easily dealt with comment at trial (many jurors think the ‘tests’ are stupid, too). Unless you truly believe you will do so well that the officer will be absolutely amazed, and I would say the probability of such an accomplishment is exceedingly low, why do it?

 

On the breath or blood test, it’s a tough call. If you think you are close or probably a little over, then maybe no ‘official’ result is best. If I thought I was over the limit for sure, then no test. If certainly well under? Test away but preferably take the blood test which is more likely to be accurate and unaffected by other substances such as mouthwashes, burps, etc. The most important thing is that you are making an informed decision versus being hustled into a scenario that you believe works against you.     

 

Other things to know or consider –

 

You must submit to a blood test for alcohol and other substances if the officer has probable cause that you have caused serious injury or death while driving or in physical control of a vehicle, even if it is your first time.  The police can forcibly assist you in submitting the sample if needed if you get what I mean. Just go with it.

 

The penalties for first time DUI, especially with an otherwise clean record, are not always severe.  Fessing up and taking your lumps is a valid choice if you have considered all the options and your situation, particularly if you have no prior convictions or have serious mitigating factors.

 

If you are injured or otherwise medically treated and the officer has probable cause that you operated a vehicle while intoxicated, such as a single vehicle crash, your blood can be collected to determine your blood alcohol level or the presence of other intoxicating substances without a warning from a police officer and even if you are unconscious.

 

You can demand a blood or breath test for alcohol or other substances even if an officer does not ask you for one. This might be prudent when another party has accused you of causing damage and you want support to show that you were not negligently impaired when the damage occurred.

 
DUI convictions are serious business. As a possible indicator of a drug or alcohol problem you will find questions about prior DUI convictions on job applications, security clearance paperwork, etc. It might even come up in your future presidential campaign. Consider your options and make informed decisions. As always, be careful out there.

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