Recently on our DUI forum a user asked, “I was stopped for a DUI on Friday night. The officer asked me to get out of the car and take a field sobriety test. I am wondering whether I had to take the test and whether I could have also refused testing I agreed to at the police station?”
Defense lawyers will tell you one of the most common questions they are asked by their clients is whether not they have to agree to voluntarily submit to the field sobriety tests or the preliminary breathalyzer (which should not be confused with the more formal chemical testing done after the DUI arrest).
Should I agree to the field sobriety test and breathalyzer?
DUI lawyers will tell you that although the officer may have observed reasonable suspicion that you are intoxicated by observing your driving, blood shot eyes, slurred speech or the smell of alcohol, they generally want to gather more evidence to establish probable cause for a DUI arrest. To do this, they will request that drivers submit to both the preliminary breathalyzer test and the field sobriety test.
After they have the results for these tests, assuming you failed, they will have established probable cause for the DUI arrest.
It’s important to understand, however, that whether or not you submit to the test and fail or whether you refuse, it’s likely you will be arrested for DUI. A refusal, as well as a failure, may give the officer probable cause to arrest you.
If you have not submitted to the tests and voluntarily given the state evidence against you, however, it will be more difficult for the state to substantiate their claim that you were driving under the influence.
What do I do at the police station?
Now, let’s assume you refused both the preliminary breathalyzer test and the field sobriety test and now you have been arrested and taken to the station. At the police station the police will ask you to take a chemical test. This test can vary by state and may include your blood, breath or urine, but in Kentucky, for instance, you will generally be given a breathing test with the Intoxilyzer machine.
When this occurs it’s important to understand the law. Most states have passed implied consent laws, which means you have given your implied consent to submit to a chemical test after a DUI arrest.
Failure to submit or submitting and having a blood alcohol concentration above the legal limit of 0.08% or higher will result in automatic administrative penalties against you, even if you are NOT ultimately convicted of DUI.
Now, although most DUI experts will still tell you that a refusal is still your best option, it’s important to consider what can happen to you. For example, in the State of Kentucky if you refuse the chemical test after the DUI arrest you will face administrative penalties which include an automatic one year license suspension, the right to use your refusal against you in court, mandatory minimum jail sentencing if you are convicted of DUI, and the inability to receive a hardship license.
Although this is bad news, the flip side is the state may have very little evidence against you to convince the court that you were driving under the influence- other than the observations of the police officer who made the DUI arrest.
You do not have to submit to any tests prior to the DUI arrest. After the DUI arrest you may still refuse the chemical test but you will face administrative penalties.
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