Never offered BAC test, cops say I refused it.

[justthere]

What state you are in? Oklahoma

I was stopped at a sobriety check point, where I was asked to do the field sobriety test. I informed the officer I had not drank that night, but did poorly on the test. I was taken in and given the option of a breath or blood test, I choose blood, even though the cops repeatedly asked me to take a breathalizer. I was sat down and told to wait for the blood test. Then I was put in a holding celll for eight hours, afterwards I was booked and charged with a DUI, the cops now saying I refused to take the test. Am I screwed, did I miss something? I thought I was in the right saying I would take a blood test.

 

[CdwJava]

Assuming there is not some strange law in OK that makes a refusal a crime, it would seem that the officers believe they have sufficient evidence to show that you were impaired on drugs or alcohol. Your alleged refusal should be an issue for your state's DMV and not for the criminal court.

Consult legal counsel for advice on how to proceed.

My guess is that they have poor performance on FSTs that indicates impairment and that was why you were arrested. If you offered to take a blood test and they were unable to provide it, then they should have told you that the only available option was breath. If you then refused, you could likely be accused of the refusal and suffer a license suspension.

 

[FlyingRon]

It's not your right to choose the form of the chemical test. It is entirely at the discretion of the officer. If you refused the breath test, he warned you of the consequences, and you still refused, you will lose your license immediately for 180 days to 3 years. The refusal is admissible in court on the DUI charge as well.

As pointed out the BAC only gives them the easy out at the per se intoxication limit. You can still be found guilty of DUI if they show by other means you are intoxicated.

You need a lawyer, you only have 15 days to contest the refusal.

 

[justthere]

hey

I was never explained, I was given a bunch of papers to sign that indicated as much, but said I wouldnt until discussing it with an attorney.

The kicker is I had been told by a lawyer to do as what I was doing in this real life example,

What is the typical punishment for first time offenders?

 

[CdwJava]

Since you rarely have a right to consult an attorney in a DUI investigation, you may have deprived them of a chemical test, but they can still proceed with your FST performance. Plus, your license may be suspended for the refusal ... if, indeed, this is a refusal in your state.

 

[FlyingRon]

I was never explained, I was given a bunch of papers to sign that indicated as much, but said I wouldnt until discussing it with an attorney.

You don't have such a right. You gave your implied consent when you got your license, the warning is just to make sure you know you are refusing something that will result in suspension.

The kicker is I had been told by a lawyer to do as what I was doing in this real life example,

Kicker was you were told by a lawyer WHAT? To refuse the chemical test? I doubt it unless you positive you were going to fail it. You could have refused the FSTs (and a PBT) without much consequence and apparently you should have done exactly that.

What is the typical punishment for first time offenders?

I told you, you'll lose your license for 180 days.
If you're convicted of the DUI you could get $1000/fine + costs and/or jail time. (penalties enhanced if there was a minor in the vehicle). License suspension for 30days, alcohol assessment, misc. other fees.

You'd better get a a lawyer and not one who told you to take the FSTs and refuse the chemical test.

 

[justthere]

well

I did say I did not want to do the FST, and then said "am I required by law to do this" and they said "yes", I asked to speak to an attorney prior to FST and they said I could not, and that I could only talk to an attorney if I was being interrogated at the station.

I was never told miranda rights and repeated asked for my attorney prior to fst, after fst, the drive over, while in custory for over 12 hours.

I am getting a lawyer, no worries.

 

[CdwJava]

I did say I did not want to do the FST, and then said "am I required by law to do this" and they said "yes", I asked to speak to an attorney prior to FST and they said I could not, and that I could only talk to an attorney if I was being interrogated at the station.

Well, they were correct in that you had no legal right to consult an attorney prior to the FSTs, but they were incorrect in saying you were required to submit to the FSTs that you did poorly on. Perhaps an attorney can make some hay out of that ... but, maybe not.

I was never told miranda rights and repeated asked for my attorney prior to fst, after fst, the drive over, while in custory for over 12 hours.

About 90% of investigations and arrests will never require Miranda rights to be read. They are generally only required after an arrest and when interrogation is taking place. An investigation in the field is generally not considered custody for purposes of Mrianda.