If you are arrested for drunk driving one of the first things an officer may ask you to do is take a chemical test of your blood, breath or urine. Although you may have the right to refuse the test, refusing may result in an automatic suspension of your driver’s license, and it may not keep you from getting convicted for drunk driving. Recently on our DUI forum we had a user ask, “Will I beat the DUI charges if I did not take a blood or breath chemical test?”
Refusing to take the chemical test
All states require drivers to take a blood or breath test if they are arrested for drunk driving. State’s “expressed consent” laws say that if a driver is lawfully arrested by an officer who has probable cause to believe they are driving under the influence of alcohol or drugs, the driver has given their implied consent to take a chemical test.
States require that the chemical test be taken within a specified time period from the time of the arrest. Some states will let the driver choose what test they wish to take, others will allow the police to make the decision. States also have different laws about how a test refusal is handled. For instance, some states will allow the state to force you to take the test, especially if you are unconscious or you have caused an accident or injury. Consider also, some states are allowed to use the fact you refused to take the test as evidence in court and for many juries this may look like a sign of guilt.
Drivers who refuse the test will have their license immediately suspended. Many states have a mandatory one year license suspension for the first chemical test refusal and a two year license suspension for the second chemical test refusal. For more information about your state’s implied consent laws you can contact your state’s Department of Public Safety or equivalent governmental department.
What happens after the DUI arrest?
So, will you be arrested and convicted for DUI without a chemical test? Let’s assume you refused the chemical test or they did not offer you a test. If you refused the test you are facing a mandatory license suspension, but does this mean you will definitely be charged with a DUI?
Not necessarily. Whether or not you are charged and convicted for drunk driving will depend entirely on whether or not the state has sufficient evidence to prove you were driving under the influence. Not having a chemical test can be detrimental to the state, but it will not guarantee that you will get off.
The state will also review other evidence that you were intoxicated. Evidence that you are intoxicated can include illegal driving activity (including 20 patterns recognized by the NHTSA as possible indicators of intoxication), your personal appearance (slurred speech, flushed face, bloodshot eyes, odor of alcohol on the breath, and an unsteady gait), the field evidence (field sobriety test and preliminary breathing test), incriminating statements you made and the officer’s testimony against you.
As you can see, if you look drunk, act drunk, say your drunk and you fail a field sobriety test it may not be difficult for the state to prove to a jury you were drunk, even if the state does not have chemical evidence.
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