Recently on our DUI forum a driver asked if they had the right to consult with a lawyer prior to submitting to a chemical breathalyzer test.
State implied consent laws require drivers to submit to a breath or blood test if they are arrested for DUI. Prior to the test, you must have been lawfully arrested by the police officer who stopped you after establishing probable cause for the stop. The police officer must also have evidence to suggest you are intoxicated and/or under the influence of alcohol or drugs.
If the above requirements are met, you are required, under implied consent laws, to submit to a chemical test of your blood, breath, or urine which will provide information to the arresting officer about the level of alcohol in your blood. In some states you will have a choice of the type of test you would like to take; in other states you will not.
What the arresting officer must tell you before a breathalyzer chemical test
If you have been arrested for DUI and the officer has requested that you submit to a chemical test they are required to tell you the penalties for failing to submit. For example, they should notify you that if you do not take the test you could potentially lose your drivers’ license, pay fines to have it reinstated, and may have the refusal of the test used by the prosecution as evidence against you in court.
Now, to the answer the driver’s question. The officer will generally also notify you that do not have the right to talk to your DUI lawyer prior to the test. State laws vary and for information about your state’s laws you will need review the appropriate state law statutes.
For example, in the state of Colorado you can review Calvert v. State Department of Revenue Motor Vehicle Division, 184 Colo. 214, 519 P.2d 341 (1974); Zahtila v. Motor Vehicle Division, Department of Revenue, 39 Colo.App. 8, 560 P.2d 847 (1977).
Additionally, in some states, if a driver is adamant about not taking the test until they consult with their lawyer, this can be construed as a refusal under the law.
When can I have a lawyer with me?
So if you cannot talk to your lawyer prior to deciding whether or not to provide a chemical sample you may be wondering when you do have the right to legal counsel. The law allows you to have a lawyer present if you are being formally questioned or you are being held for interrogation. Under the current law, however, a chemical test has not been deemed to meet these requirements.
What are my rights before a preliminary breathalyzer test?
Some states will allow police officers to conduct a preliminary breathalyzer test prior to a DUI arrest. This test is different than the chemical test, and you are not required to submit to it. Refusing to take the preliminary breathalyzer test may not result in any administrative actions against you, but it is unlikely to delay DUI arrest. In fact, police officers may have enough evidence to arrest you even if you refuse the breathalyzer test.
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