If I am pulled over because a cop thinks that I'm drunk, and I have only had two beers, what should I do? Should I take the breath test? Do I have to?
The law does not require you to answer potentially incriminating questions. A polite "I would like to speak with a lawyer before I answer questions" is a good reply. Be polite and Never lie to law enforcement, as it will lessen your credibilty in court.
The law does not require that you submit to any field sobriety tests.
Field sobriety tests are not mandatory and there is no legal obligation to submit to the tests, which includes the hand held portable breath tests used in the field.
An individual should politely decline to perform any field sobriety tests by stating, “My lawyer has advised me not to perform any field tests.” If the officer advises you that your failure to perform a test will result in the suspension of your license, immediately ask to speak with an attorney.
Breath Test At the Police Station-
Under Washington's "Implied Consent Law" a driver has already consented to the breath test.
Although, you do have the right to refuse to take the breath test at the police station, the consequences are severe, and you can still be charged with a DUI. Under the law, there are three consequences: Your driver's license can be suspended for a minimum of one year, or substantially longer if you have prior DUI convictions, or alcohol related administrative license suspensions.
The fact of refusal can be introduced into evidence as "consciousness of guilt." A test refusal will increase the mandatory minimum sentence that the judge must impose if you are found guilty.
If you refuse the test the Department of Licensing (DOL) will revoke your license for at least one year. Prior DUIs can increase the revocation to two years. While an Occupational License may be available after 90 days (one year if a second administrative action), an Ignition Interlock Device will be required and you will be required to carry high risk insurance for three years following reinstatement of your permanent license.
I advise my clients that if they are ever pulled over and they question their own sobriety they should tell the officer they are willing to perform whatever tests they request so long as they have an attorney present. In FL and possibly in Washington, the courts have held that an individual is not entitled to counsel for field sobriety tests or chemical tests (breath, blood, urine) as it is merely the gathering of evidence and not testimonial in nature. Thus, even though you won't get your request, you will be building yourself a defense as the State will not be able to argue "consciousness of guilt" nor will they have the physical evidence against you. However, you should be aware that in many states refusing to provide a breath test (possibly blood or urine too) after refusing during a prior incident can lead to a separate charge.
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