Should a FST be taken before a breathalyzer by police

i was recently charged with a dwi i was bring a friend was was extremely drunk and vomiting inside my car military police asked if i had drink i replied no he then said i had and told me to drive my car and park and get out i was administer a breathalyzer immediately chewing gum at time of test also when arrested i took to intox test but there machine did not work i then ask to be escort to the nearest hospital and was denied is this worth fighting

Jacksonville, NC -

Attorney Answers (5)

Jorge Luis Rodriguez

Jorge Luis Rodriguez

DUI / DWI Attorney
Answered

No they are just part of the officer's many means to help determine if you are intoxicated. They are not required at any point. The gum in your mouth may have raised their suspicions and should usually be removed for 20 minutes of more before any certified breath test is administered. You should consult a local, experienced, defense attorney for more specific advice about your case.

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F. "Bill" William Powers

F. "Bill" William Powers

DUI / DWI Attorney - Charlotte, NC
Answered

Although my bretheren have provided good, general information, there are some unique laws in the State of North Carolina.

While an AlcoSensor (FST) is NOT required, the North Carolina General Assembly wrote into law an important factor to consider:

N.C.G.S. 20-16.3 Alcohol screening tests required for certain drivers; approval of test devices and manner of use by Department of Health and Human Services; use of test results and refusal.

N.C.G.S. 20-16.3(d) reads in relevant part, ". . .or a driver's refusal to submit may be used by a law enforcement officer, is admissible in a court."

In any event, the numerical value on the AlcoSensor is NOT admissible. Only "positive" or "negative" is admissible in court when addressing Probable Cause.

NHTSA standards specifically caution against relying too heavily on Alcohol Screening Devices in forming probable cause. In fact, the AlcoSensor should be used as a confirmational tool and not the primary basis for formulating a legal basis for arrest.

As you might already realize, it is an EXTREMELY COMPLICATED area of law in the Pine State.

Bill Powers
North Carolina DWI Defense

NOTE: Although a response is provided to the specific question, there may be other facts and law relevant to the... more
James C Forslund

James C Forslund

DUI / DWI Attorney - Englewood, CO
Answered

The officer needs to have probable cause to believe your driving is affected by alcohol. He can base it on what he observes.

Ted Harvatin

Ted Harvatin

DUI / DWI Attorney - Springfield, IL
Answered

Not necessarily

Jon Martin Pettis

Jon Martin Pettis

DUI / DWI Attorney - San Diego, CA
Answered

It is almost always worth fighting. To begin, the police are not required to have you do field sobriety tests and you are not required to perform them. However, a jury could see that as a sloppy investigation by the police. If you were chewing gum just before the breath test, then the test was not done properly and could be challenged. The maufacturer's guidelines for breath tests require a observation period of at least 15 to 20 minutes depending on the jurisdiction. If you had alcohol in your mouth, the gum can pick up minute amounts of it that can then throw off a test result significantly.

Any comments offered are not intended as legal advice. This attorney does not know the specifics of the... more

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