What is the name of your state (only U.S. law)? Hawaii
Background:
My wife was driving alone at about 11 am, hit the corner of the curb of a triangular shaped island-type median when turning at a "y" intersection. She hit it hard enough to knock the bottom of the low profile bumper loose and cause the passenger side airbag to deploy. Knowing she did no damage to the curb, she did not stop, but continued the few miles home thinking she had a tire losing air. She parked the car at our condo and went inside very shaken. About 15-20 minutes later, the police knocked on the door. According to the police, someone reported her incident. They asked for her to come outside, which she did, and during their questioning they asked her if she had been drinking. She told them no. They believed otherwise and asked her to submit to a field sobriety test which she refused. They asked her to do a preliminary field breathalyzer test and she politely argued that she had done nothing wrong, did not cause any injury or damage to anyone else's property, was at home minding her own business, and that she absolutely refused. The officer informed her that she could have her license suspended for 2 years for refusal. She still refused knowing that she did nothing wrong.
After her refusal, the officers placed her under arrest, put her in cuffs and took her to the police station. She assumed that she would be given a breathalyzer or blood test at the station, but she was not. They never asked again. They processed her, charged her for DUI, and transferred her to the main station. During the process, they took her license because she "refused" the tests.
I looked up the implied consent law to see how long she would have to be without her license. Assuming her account is true, what I found leads me to believe they should not have taken her license all. From what I understand, the refusal must occur after an arrest. A refusal of a preliminary field given breathalyzer doesn't trigger a revocation. She was not asked to do a test after her arrest so she never officially refused so how can they take her license?
Maybe I am looking at an old law or cherry picking, but this is what I found:
"§291E-11 Implied consent of operator of vehicle to submit to testing to determine alcohol concentration and drug content. (a) Any person who operates a vehicle upon a public way, street, road, or highway or on or in the waters of the State shall be deemed to have given consent, subject to this part, to a test or tests approved by the director of health of the person's breath, blood, or urine for the purpose of determining alcohol concentration or drug content of the person's breath, blood, or urine, as applicable.
(b) The test or tests shall be administered at the request of a law enforcement officer having probable cause to believe the person operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State is under the influence of an intoxicant or is under the age of twenty-one and has consumed a measurable amount of alcohol, only after:
(1) A lawful arrest;..."
My wife already retained a lawyer, but during a brief consultation he glossed right over the fact that she was never asked to test after the arrest nor was she even given the opportunity to refuse after the arrest. He just basically said her license would be revoked for 2 years, recited the procedure for obtaining the interlock device and due dates, etc. Should she argue the point that she was never asked to test after her arrest or am I way off base here?
Thanks in advance
Background:
My wife was driving alone at about 11 am, hit the corner of the curb of a triangular shaped island-type median when turning at a "y" intersection. She hit it hard enough to knock the bottom of the low profile bumper loose and cause the passenger side airbag to deploy. Knowing she did no damage to the curb, she did not stop, but continued the few miles home thinking she had a tire losing air. She parked the car at our condo and went inside very shaken. About 15-20 minutes later, the police knocked on the door. According to the police, someone reported her incident. They asked for her to come outside, which she did, and during their questioning they asked her if she had been drinking. She told them no. They believed otherwise and asked her to submit to a field sobriety test which she refused. They asked her to do a preliminary field breathalyzer test and she politely argued that she had done nothing wrong, did not cause any injury or damage to anyone else's property, was at home minding her own business, and that she absolutely refused. The officer informed her that she could have her license suspended for 2 years for refusal. She still refused knowing that she did nothing wrong.
After her refusal, the officers placed her under arrest, put her in cuffs and took her to the police station. She assumed that she would be given a breathalyzer or blood test at the station, but she was not. They never asked again. They processed her, charged her for DUI, and transferred her to the main station. During the process, they took her license because she "refused" the tests.
I looked up the implied consent law to see how long she would have to be without her license. Assuming her account is true, what I found leads me to believe they should not have taken her license all. From what I understand, the refusal must occur after an arrest. A refusal of a preliminary field given breathalyzer doesn't trigger a revocation. She was not asked to do a test after her arrest so she never officially refused so how can they take her license?
Maybe I am looking at an old law or cherry picking, but this is what I found:
"§291E-11 Implied consent of operator of vehicle to submit to testing to determine alcohol concentration and drug content. (a) Any person who operates a vehicle upon a public way, street, road, or highway or on or in the waters of the State shall be deemed to have given consent, subject to this part, to a test or tests approved by the director of health of the person's breath, blood, or urine for the purpose of determining alcohol concentration or drug content of the person's breath, blood, or urine, as applicable.
(b) The test or tests shall be administered at the request of a law enforcement officer having probable cause to believe the person operating a vehicle upon a public way, street, road, or highway or on or in the waters of the State is under the influence of an intoxicant or is under the age of twenty-one and has consumed a measurable amount of alcohol, only after:
(1) A lawful arrest;..."
My wife already retained a lawyer, but during a brief consultation he glossed right over the fact that she was never asked to test after the arrest nor was she even given the opportunity to refuse after the arrest. He just basically said her license would be revoked for 2 years, recited the procedure for obtaining the interlock device and due dates, etc. Should she argue the point that she was never asked to test after her arrest or am I way off base here?
Thanks in advance
