Can You Refuse Breath or Blood Test At Police Station?

[netfocus]

Florida (though curious about other states)

I am curious if you decline the field sobriety and field breath test are you still required by law to take a blood or breath test at the police station? You receive automatic 1 year suspension for declining field tests - but would you run into additional penalties by declining the station tests?

I read an article about a local attorney who declined the field blood and breath tests and it appears he didn't take anything at the station either.

Also, on a related note can police legally take a blood test out of blood a hospital took for a sample after an accident during treatment or do they need your consent? This happened to a friend recently, you would think they would need a search warrant for this? What about if there is no accident can they tie you down and take a blood test forecefully?

 

[CdwJava]

Florida (though curious about other states)

I am curious if you decline the field sobriety and field breath test are you still required by law to take a blood or breath test at the police station? You receive automatic 1 year suspension for declining field tests - but would you run into additional penalties by declining the station tests?

Some states provide for additional penalties or criminal charges for such a refusal. In many states and jurisdictions, a refusal can also be used as evidence of consciousness of guilt.

And in other states you can be FORCED to give blood on a refusal. So, you can refuse, suffer a mandatory suspension and the state can STILL force blood in order to get their chemical test! So, the refusal can just be a double whammy for the suspect.

I read an article about a local attorney who declined the field blood and breath tests and it appears he didn't take anything at the station either.

If he was only marginally impaired, and he was not sloppy drunk, it might benefit him. If he was staggering, slurring his speech and/or weaving all over the road 20 MPH UNDER the limit, then it would likely be irrelevant.

Also, on a related note can police legally take a blood test out of blood a hospital took for a sample after an accident during treatment or do they need your consent?

It varies by state. In my state we can get the blood at the hospital. if we want to use the test drawn for medical purposes only, we would need consent, or we could get the medical records via subpoena or search warrant later.

This happened to a friend recently, you would think they would need a search warrant for this? What about if there is no accident can they tie you down and take a blood test forecefully?

Federally, yes they can hold you down and take blood. Most states also permit this. However, even if lawfully permitted, some jurisdictions and agencies will not do it.

 

[asiny]

Florida (though curious about other states)

I am curious if you decline the field sobriety and field breath test are you still required by law to take a blood or breath test at the police station? You receive automatic 1 year suspension for declining field tests - but would you run into additional penalties by declining the station tests?

No and no.

I read an article about a local attorney who declined the field blood and breath tests and it appears he didn't take anything at the station either.

Very nice.

Also, on a related note can police legally take a blood test out of blood a hospital took for a sample after an accident during treatment or do they need your consent?

Yes and no. The hospital could run a blood test to make sure that the cause of the accident is not alcohol or drug related.

This happened to a friend recently, you would think they would need a search warrant for this? What about if there is no accident can they tie you down and take a blood test forecefully?

No and no.

 

[netfocus]

No and no.

Thanks for the reply.

So regarding my first question you say no and no; so just to confirm the testing at the station whether blood or breath would not result in any different penalties than I may already receive for refusing field tests? Because I am cool with taking station tests if its going to get me in more trouble, but I just don't believe in field tests based on friends who have had bad experiences.

 

[netfocus]

Some states provide for additional penalties or criminal charges for such a refusal. In many states and jurisdictions, a refusal can also be used as evidence of consciousness of guilt.

I understand this, but that is a very backwards prosecution strategy. Btw, if you are found not guilty does the refusal penalties such as the 1 yr suspension go away?

And in other states you can be FORCED to give blood on a refusal. So, you can refuse, suffer a mandatory suspension and the state can STILL force blood in order to get their chemical test! So, the refusal can just be a double whammy for the suspect.

I just don't trust field tests; once you are asked for them I think you are already under arrest so doesn't matter what happens your just providing evidence on video. Whats the ratio of people you ask to walk the line that you end up letting drive off?

If he was only marginally impaired, and he was not sloppy drunk, it might benefit him. If he was staggering, slurring his speech and/or weaving all over the road 20 MPH UNDER the limit, then it would likely be irrelevant.

The officers claimed he was sloppy drunk. Im just not sure what happened at the station, it appears by the article that he offered to take a blood test but did not take one or breath, not sure how he pulled it off.

http://articles.orlandosentinel.com/2011-04-08/news/os-dan-newlin-dui-arrest-20110408_1_dui-arrest-orlando-police-officer-orange-county-jail

It varies by state. In my state we can get the blood at the hospital. if we want to use the test drawn for medical purposes only, we would need consent, or we could get the medical records via subpoena or search warrant later.

Yes very interesting with my friend, he wrecked and then claims he woke up in the hospital but then there is apparently video of him awake at the scene, so think he was just blackout drunk, but he was treated at the hospital and did not consent to any blood tests from what he remembers, he got a summons with DUI charges in the mail and then found out they had tested his blood, etc.

 

[CdwJava]

I understand this, but that is a very backwards prosecution strategy. Btw, if you are found not guilty does the refusal penalties such as the 1 yr suspension go away?

Since my state does not make it a crime, i couldn't say what those other states might do. I suspect they are two issues - one criminal and one administrative. As such you can be found not guilty and still have your license suspended.

I just don't trust field tests; once you are asked for them I think you are already under arrest so doesn't matter what happens your just providing evidence on video. Whats the ratio of people you ask to walk the line that you end up letting drive off?

Not true. You are only detained, not under arrest. When done properly they are quite accurate.

I'd say we let go about one in four. But, we tend to only conduct FSTs on the drivers that we are pretty sure are under the influence. A better question might be, "How many drivers that you know have had at least one drink do you let go?" and the answer to that might be about half.

It's like asking a DA his conviction rate at trial. It tends to be pretty high because they tend to only prosecute those cases that they have a good chance of winning.

The officers claimed he was sloppy drunk. Im just not sure what happened at the station, it appears by the article that he offered to take a blood test but did not take one or breath, not sure how he pulled it off.

You can always refuse the test. But, if they had enough to arrest you and then ask you for the mandatory test, chances are they already have a pretty good case. if you're sloppy drunk, it might be a good idea not to get a test. If you are NOT impaired and have truly only had one beer and no prescription meds, it might be a good idea to take the test. When a jury hears that you refused the tests and the mandatory chemical test, they are likely to conclude what most of us would - "He's drunk."

Attorney Daniel Newlin blames 'overzealous' cop for his DUI arrest - Orlando Sentinel

That's old. And it had to do with the FDLE not maintaining a particular machine or group of machines. It had nothing to do with the evaluations in the field or the officers involved - simply lax procedures by the criminalists responsible for the maintenance of the devices and who assured local law enforcement the devices were functioning properly. We do not use the Intox 8000 out here that I have ever heard of (and the state issues a different device) so I have no experience with the machine.

Yes very interesting with my friend, he wrecked and then claims he woke up in the hospital but then there is apparently video of him awake at the scene, so think he was just blackout drunk, but he was treated at the hospital and did not consent to any blood tests from what he remembers, he got a summons with DUI charges in the mail and then found out they had tested his blood, etc.

The police could get the staff to take a blood draw while he is at the hospital. Or, they could have subpoenaed the results. Laws vary by state. We'd simply provide the nurse with a blood vial of our own and ask them to draw it and document the seizure and place everything into evidence shipping the blood off for analysis.

 

[netfocus]

Not true. You are only detained, not under arrest. When done properly they are quite accurate.

I'd say we let go about one in four. But, we tend to only conduct FSTs on the drivers that we are pretty sure are under the influence. A better question might be, "How many drivers that you know have had at least one drink do you let go?" and the answer to that might be about half.

It's like asking a DA his conviction rate at trial. It tends to be pretty high because they tend to only prosecute those cases that they have a good chance of winning.

What I meant was that if you are asked to step out of the car and perform a test then the odds are pretty bad and your pretty much going to find yourself under arrest, so why provide video evidence. As you said there is a 75% chance you will arrest someone that you ask to do a field test, so I guess its a 1 in 4 gamble of whether you want to comply and possibly provide evidence on video or a gamble that you are part of that 25% that may drive off - but if your not you just provided a bunch of evidence.

But a bigger issue is that I have had friends that pass the field tests and are still arrested - so that was my concern too. I would be more inclined to refuse a field sobriety test but take a field breathalyzer possibly if I knew I was totally sober.

I don't plan on driving drunk, but 2 or 3 mixed drinks can put you very close and possibly over if you have a bartender pouring heavy, so you never know. I am working on buying a breathalyzer right now to keep in my car.

 

[CdwJava]

What I meant was that if you are asked to step out of the car and perform a test then the odds are pretty bad and your pretty much going to find yourself under arrest, so why provide video evidence. As you said there is a 75% chance you will arrest someone that you ask to do a field test, so I guess its a 1 in 4 gamble of whether you want to comply and possibly provide evidence on video or a gamble that you are part of that 25% that may drive off - but if your not you just provided a bunch of evidence.

It's up to you whether you want to do the tests or not. You may not have any choice about stepping out of the car or not.

The DUI observation and evaluation actually begins prior to the stop. The evaluation includes all aspects from observations, to sounds, to smells, to actions. An adequately trained officer will often know who is likely to be DUI before they even have them step out of the car. In my agency we tend to have everyone who even MIGHT be impaired step out for an evaluation. There are a couple of reasons for this. One, it allows the officer to be sure (perhaps the odor they smelled came from a passenger, or was on the clothing, or something else). And, two, it can look good to have people say that they were evaluated and released because they were deemed not impaired. That might not be the case everywhere.

But a bigger issue is that I have had friends that pass the field tests and are still arrested - so that was my concern too.

If they were arrested, they did not "pass." If I had a nickel for everytime I heard that a person "passed" ...

The officer will almost always tell you that you are doing "fine." Why? because saying some things can get the suspect to stop, to shut down, or maybe fight. ... "Well, you kinda sucked at that one there - I saw three clues to impairment."

I would be more inclined to refuse a field sobriety test but take a field breathalyzer possibly if I knew I was totally sober.

The field breath test is one of the FSTs and cannot be used out here for an actual BAC unless we are talking about people under 21.

I personally do not use a PBT device. I can form my opinion just fine without it.

I don't plan on driving drunk, but 2 or 3 mixed drinks can put you very close and possibly over if you have a bartender pouring heavy, so you never know.

Maybe ... in most people, if you had them close enough together, you could get to about .06 BAC.

I am working on buying a breathalyzer right now to keep in my car.

But, even being UNDER .08 you can still be impaired. So, just being under the per se limit does not mean you are clear to go.

 

[netfocus]

But, even being UNDER .08 you can still be impaired. So, just being under the per se limit does not mean you are clear to go.

Thats the part I forgot about, that may have been what my friend was charged under that passed the field tests, pretty sure he blew under .08. If thats the case then maybe you should just take the field test if you are lucid and feel sober... That is if you trust the officers that pulled you over - that friend of mine claims he had just 1 Beer, pretty honest guy and no need to lie to us etiher.

Most of the times I have been pulled over at night after drinking the officer has never asked me if I was drinking, so I am most likely sober enough most of the time with 3 drinks or so and a few hours of time.

 

[CdwJava]

Good rule of thumb is two hours per drink to be sure to drop to 0.00. The actual rate could be as high as 1.5 hours per drink, but two hours is easier to do the math on.

 

[DUIAttyPCho]

Refusing a Breath or Blood Test at Police Station in California

In California, while you can refuse FSTs and the PAS breath test at the field without penalty, you CANNOT refuse a breath test at the station OR a blood test at the hospital, as California is an implied consent state as far as chemical tests are concerned. For purposes of "chemical tests" California law means the breath test at the station or the blood test at the hospital. Urine tests are disallowed now, since there is a California case on point that treats urine tests for alcohol as iffy for purposes of DUI.

Refusing the chemical test will result in more penalties at the Superior Court, not to mention DMV will suspend your license for a full year. When you receive your California Driver's License, you are agreeing to comply with chemical tests for DUI in return for the privilege of driving in California. If you refuse, your license will be taken away by DMV. The California Superior Court may add additional penalties for the refusal (California has a refusal enhancement charge that they add to your DUI charges when you refuse a chemical test), but that varies depending on what County you are in. But the most severe punishment for a refusal in California is a one year suspension of your license.

 

[Isis1]

In California, while you can refuse FSTs and the PAS breath test at the field without penalty, you CANNOT refuse a breath test at the station OR a blood test at the hospital, as California is an implied consent state as far as chemical tests are concerned. For purposes of "chemical tests" California law means the breath test at the station or the blood test at the hospital. Urine tests are disallowed now, since there is a California case on point that treats urine tests for alcohol as iffy for purposes of DUI.

Refusing the chemical test will result in more penalties at the Superior Court, not to mention DMV will suspend your license for a full year. When you receive your California Driver's License, you are agreeing to comply with chemical tests for DUI in return for the privilege of driving in California. If you refuse, your license will be taken away by DMV. The California Superior Court may add additional penalties for the refusal (California has a refusal enhancement charge that they add to your DUI charges when you refuse a chemical test), but that varies depending on what County you are in. But the most severe punishment for a refusal in California is a one year suspension of your license.

first, i sincerely aplogize if this is coming off as rude, but as you are claiming to be an attorney, it is site policy to be vetted by the administration. so in the event one of your posts disappear, it's only to inform admin of your presence.

so FYI, i'm letting admin know we have an additional legal volunteer and welcome, BTW.

 

[DUIAttyPCho]

Not a problem. I've already been contacted by Admin and I have been verified. I'll be writing DUI articles soon for the site, so look out for me!
I hope I can answer questions that people may have regarding DUIs! I'm glad to be of service!

 

[CdwJava]

It would be useful to have an attorney specializing in DUI on the site.

Welcome.

 

[DUIAttyPCho]

Thank you. But really, you guys have been right on the money as far as what advice you give out. I'm just reconfirming what you guys wrote. All I got is a piece of paper that says I can pratice! LOL. Hopefully I can be of use to everyone seeking advice. Or at least as an endorser of what is already good and sound advice!