Under what circumstances should you REFUSE the breathalyzer?

[elmuchoprez]

By now, everyone who hangs around this board has probably seen a dozen posts by people who start off their story with, "I was pulled over and refused the breathalyzer." That's usually followed by a bunch of people telling them why they shouldn't have refused (I've probably read 50 cases like that and it's never spared them a DUI conviction).

That got me thinking: Are there any circumstances in which refusing the breathalyzer, either on the scene or back at the station, is a sound legal decision? I can't really see how it would possibly help the situation.

 

[seniorjudge]

Q: Are there any circumstances in which refusing the breathalyzer, either on the scene or back at the station, is a sound legal decision?

A: None that I know of.

 

[aleshirley]

As I understand it in my local muni is that when you refuse you are automatically giving yourself a DUI conviction and a mandatory 1 year suspension - however you will avoid any jail time (beyond DUI school), mandatory counseling, yellow plates and the larger fines. So I guess, it would benefit you to NOT blow if you KNOW you will surely be a .16 or more. If you are going to blow .08 or not much more it would benefit you to blow because you will not serve a full years suspension. In my case I had a high blow and it would have benefitted me to refuse. However when you get a scared woman who has never been in trouble pulled over when she knows she probably shouldn't be driving -- well I wasn't telling anyone no. Oh, additionally it is common practice for officers to take you in and have you wait up to two hours before giving you the test -- you would think that this would help your chances but it does the exact opposite. If this ever happens to me again (which will be when hell freezes over) I would refuse to blow - especially if I had stopped drinking more than two hours prior or if I was sitting in a holding area while the police waiting for that alcohol to metabolize.
(I didn't make that up. I was actually taught this in DUI school. How about that?)

 

[FlyingRon]

Depends what state you are in. It used to be there were places that it was more worth your while if you knew you were DUI to refuse. However, the sanctions most places have increased and they'll still take you into custody and do a blood test in many instances so it buys you nothing than additional sanctions for refusing and enmity on the part of the police.

 

[BigMistakeFl]

BigMistakeFl

A: If you're definitely drunk as a skunk and this is your first DUI arrest.

People who refuse to take the test and had "only two beers", are making a huge mistake by refusing. Implied consent means that you lose your license for refusal. And in many states, the suspension (DMV side) is longer for refusal.

(Do skunks drink, or is that used only because it rhymes?)

 

[stephierae]

I dont think I would ever refuse. I'd be too afraid too.

 

[BigMistakeFl]

BigMistakeFl

I'm guessing that refusal would only be to your advantage is you knew you were well above twice the "legal limit". High BAC can carry more harsh penalties. So I guess that if you're drunk, really drunk, say nothing and refuse the tests, knowing that you are going down and not wanting to provide any more evidence against yourself.

Having been through it, the best choice is just not to drive at all after drinking. Hire a limo and buy a case of good champange..... it's much cheaper and safer.

 

[CdwJava]

Personally I like a refusal ... I fill out the paperwork, document his refusal (usually on digital audio as I read him the admonishment about losing his license if he refuses), and then I transport him to the hospital for a FORCED evidentiary blood draw. You cannot refuse to provide evidence.

At that point he will suffer an eventual license suspension for the refusal, AND I get his blood for a BAC ... it's a win-win for the prosecution and for public safety in these instances.

Oh, and the refusal can also be used in court as evidence of consciousness of guilt.

- Carl

 

[shelton442]

I'm guessing that refusal would only be to your advantage is you knew you were well above twice the "legal limit". High BAC can carry more harsh penalties. So I guess that if you're drunk, really drunk, say nothing and refuse the tests, knowing that you are going down and not wanting to provide any more evidence against yourself.

Having been through it, the best choice is just not to drive at all after drinking. Hire a limo and buy a case of good champange..... it's much cheaper and safer.

Refuse every time. My attorney has told me this. Never let them get the upper hand. If you have had one drink- just one. They will make sure you are DUI. So I didn't get taken to the hospital for a BAC . Carl , stop thinking you are God on this board.

 

[CdwJava]

Refuse every time. My attorney has told me this.

That may be effective in some states, but it would NOT be good advice in all of them. Attorneys I know offer different advice.

Never let them get the upper hand. If you have had one drink- just one. They will make sure you are DUI.

Hogwash. If you had only one standard drink, the odds of you being DUI are slim to none (unless you combine drugs).

Carl , stop thinking you are God on this board.

Where did THAT come from???

I never implied I was God. If you did not like my post on this topic, I'm sorry you don't like the fact that the police can legally compel blood as evidence even after a refusal. The USSC has said so. Local agencies may forbid this practice in all but felony cases, but that's a matter of policy, not law.

- Carl

 

[BigMistakeFl]

BigMistakeFl

In my state, refusal for a second or third DUI carries greater penalties, automatically. If you are not impaired, have truly only had one drink, the breathalyzer test would be to your advantage. True, a cop is not likely to pat you on the back and let you go after the BAC results. Once stopped, you face a pretty good chance of the arrest going through; but a BAC of 0.01 or 0.02 would be great for your defense. Chances are good that the case would not be pursued. I'd want that advantage rather than the implication and automatic suspension that comes with refusal.

 

[BigMistakeFl]

BigMistakeFl

I've no doubt that there is a cottage industry that generates big income from DUI arrests. However, Between 1982 and 1993, 266,291 deaths in the United States were alcohol-related -- one fatality every 30 minutes. That's compelling evidence, and sobering for someone like me who was arrested for DUI a couple of years ago. That means I drove after drinking many many times before I got caught.

Drunk driving showed a long, slow decline between 1993 and 1997, from 123 million incidents a year to 116 million. But according to a new national survey, from 1997 to 1999 that increased 37 percent to 159 million and that rate continued in 2002.

A driver with a blood alcohol concentration (BAC) of 0.10 or greater is seven times more likely to be involved in a fatal motor vehicle crash than is a driver who has not consumed alcoholic beverages, and a driver with an alcohol concentration of 0.15 or greater is about 25 times more likely.

 

[tony317536]

I dont think I would ever refuse. I'd be too afraid too.

I wish I would have refused the fst's ... In Indiana, you can refuse the fst's without penatly, but if you refuse the chemical test that is approved by the Indiana University Toxicology Department, it's an auto 1 year bmv administrative suspension.

I went to get a copy of my police report today, from my arrest early sunday morning and they really did doctor it up. When I asked the officer if I passed the fst's, he said yes. When I read the police report this afternoon, he states in the report that I failed two of three fst's and failed to maintain balance during the instruction phase of test #2.

Another thing that really bothers me is that nowhere in that report is my actual bac from the chemical test. The only mention of a bac is that I was at least .08 ... Well the chemical test resulted in .09 ... Do they always avoid those kinds of details? I would assume that they didn't want to list my actual bac because it wasn't much over the legal limit.

On a positive note, I do have documentation stating that my bac was .09 on the peice of paper he gave me to serve as my drivers license until my initial hearing Thursday afternoon.

 

[CdwJava]

However, I AM a court-certified expert in DUI, and in the effects and identification of impairment due to drugs and alcohol, so I guess I know just a tad about the subject.

Since you have no idea who I am, who I know, or what experiences I have had, you are certainly not qualified to say what I know or do not know.

DUIs are set up to make money for the local governmernt.

Really? I am involved in my city's budget planning ... we LOSE money on DUI arrests and prosecution. In CA we do not MAKE money on them. In SOME jurisdictions they have in place "cost recovery" programs that help to defray some of the costs, but these do no take into account court time and chemical testing.

I don't codone drunk driving but I have a limit where someone is singled out. I have seen your posts for several months and you do act like your are God. You are not.

You may be confusing me with someone else. I have never once claimed to be the end all of anything, and have never singled anyone out for any special act of enforcement.

Admittedly, I have zero tolerance for DUI and for that I will not apologize. That being said, I also have to adhere to the law that says I must have probable cause to make an arrest. That probable cause comes from training and experience including observations of the bad driving, performance on FSTs, and basic functions unrelated to FSTs or driving (fishing for ID, odor, slurred speech, and other objective symptoms of impairment). Yes, I have released people after conducting FSTs for possible DUI. And, yes, I have arrested people for DUI with BACs as low as .04.

I have also scraped the remains of families off the pavement and cradled a dying child in my arms while a drunk driver verbally assailed me from behind screaming that I was violating his rights because he was in handcuffs. I have no sympathy for DUI drivers, but I am always hopeful that the first arrest will be the last, and that they will learn from that mistake.

Sadly, this is too often not the case.

In the end, if you do not like my posts, you are certainly free to ignore them. And if I have made any references or points that are not legally accurate, please point them out because I have been - at times - incorrect or misinformed on certain matters.

- Carl

 

[CdwJava]

I often get told to join MADD or accused of being their shill ... heck, I can count on one hand the number of times in the last several years I have been to their website, have never been a member, and don't know of anyone that has told me they are a member. I have received a MADD DUI pin many years ago (12 arrests in 12 months and you got a pin), but that was when I was a young street cop.

For some reason, some people think it is an insult to declare a person to be a part of MADD? Heck, I wouldn't be ashamed of it, I just have no great interest in joining yet one more organization that I don't have time to actively support or participate in.

I know there are organizations out there supporting the "reform" (i.e. the weakening) of DUI laws, so maybe some should contact those organizations and sign up. A Google search ought to find those groups ... I know there are a couple active in CA and I have probably been to their websites at least as much as I have been to MADD's.

- Carl