When you are stopped and asked to blow?
This is the most frequent question DUI attorneys hear from their clients. Generally speaking, I would always recommend refusing. Refusing is just another way of making it more difficult for the state to prove its case. There are various other signs of impairment that they can however use against you like your performance on field sobriety tests and other clues of impairment. The most difficult thing about providing a blanket answer to this question is the fact that every situation presents unique facts and circumstances. Thus, when in doubt, using your best judgment is always a good call.
Generally speaking, it is better if you refuse. By taking the breath test and field sobriety tests, you are providing the officer with evidence that will be used against you. Officers love to say that if you blow and aren't a .08 or above, they'll let you go. They'll tell you that the portable breath test results cannot be used in court. They'll try to make it seem like the breath test and field sobriety tests can clear you, and if you pass, they will let you go. The truth is, you can be charged with DUI even if you blow below a .08.
Generally speaking, it is better to refuse all testing.
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I advise clients to refuse all field sobriety tests, if they have the courage to say no to the officer/s.
Why? Because, in my opinion the tests are designed for failure. Think about it. You see the overhead lights in your mirror, your heart starts to race a little, adrenaline starts to pump and your hands get sweaty or twitchy at the prospect of being pulled over. The officer approaches your window and proceeds, per training, to ask you multiple questions designed to analyze your cognitive state. You will then be asked to exit the vehicle to perform certain tests which ONLY the officer gets to grade. And guess what? You are not told what it is you are being graded on nor are you given an opportunity to practice the balance exercises that are part of the standard field sobriety test regimen advanced by the National Highway Traffic Safety Administration. You will be asked to raise your leg and hold steady while counting out loud. Good luck on that if you have been sitting in your car for a while prior to being stopped. You will be asked to walk 9 steps heel to toe on a straight line, but sometimes there is no line to follow and so you have to walk an "imaginary line" and finally the officer will examine your eyes to determine the prsence of nystagamus or "twitching". If you take the tests and the officer claims you have failed them than that gives the officer probable cause to arrest you for suspicion of DWI. If you disagree that you did not fail the tests then it becomes your word versus the officer's word, who will show up in court all resplendant in uniform with badges and awards affixed to his/her chest.
However, if you refuse the field sobriety tests, the officers need to find another basis to arrest you. And lets be honest, if they are inclined to arrest you they're going to arrest you, so why help their case?
Sorry for the long winded answer but I just love beating up cops on the stand when they arrest my clients for dwi based upon their "subjective observations" and the volume of material the carefully omit from their reports which might tend to exonorate my clients.
NEVER EVER take any Field Sobriety Tests, for five reasons: 1) You don't have to; 2) They cannot help you; 3) No one can pass them; 4) They are scientifically without meaning; 5) You're going to jail with them or without them.
"Field Sobriety Tests" includes ANYTHING the officers ask you to do before arresting you. Don't walk the line, don't stand on one leg, don't follow their light or pen with your eyes, don't say the alphabet, count backwards or touch your nose. And whatever else you do, DON'T blow in their cheap, phoney-baloney roadside breath test. POLITELY refuse to do any of that stuff. Do anything the officer ORDERS you to do, and not one thing more.
Refusing to do any of that is not what is meant by "Refusal". It is only good common sense once you know your rights.
Let me take those five reasons one at a time:
1) You don't have to - All tests given prior to arrest are voluntary. They are a form of testifying against yourself. The police cannot require you to stand on one leg any more than they can require you to admit to any other crime. If they ask and you answer (or in this case if they ask and you balance), you're just doing their work for them.
2) They Cannot Help You - These tests are designed only with degrees of failure, not degrees of success. Each thing you do tightens the legal noose - nothing you do can improve it. The best you can hope for is not to make things worse...which you do by not taking these tests.
3) No One Can Pass Them - It doesn't matter if you are the most sober, most coordinated person on the road. If the officer believes you may be intoxicated, you are going to "fail" these tests.
4) These "Tests" Have No Scientific Validity - The studies that validate these "tests" were made under completely unrealistic conditions. Officers were given alternate tools to "verify" their answers (they could cheat!). The studies ignored false positives. The studies were never peer reviewed. Much of the study data was conveniently lost once lawyers began to challenge them. While the government claims a high degree of reliability for these tests, independent statisticians have revealed that they are only about 35% accurate. Meaning that you'd be more accurate if you randomly guessed who was intoxicated and who wasn't.
5) You're Going to Jail Anyway - Most clients tell me they performed field sobriety tests because they feared going to jail. What they didn't know was that they were going to jail no matter whether they did these tests or not. The Field Sobriety Tests are not used in the real world to determine intoxication; that's nothing but a petty legal fiction. They are used to justify the arrest the officer already knew he was going to make before he pulled you out of your car. Think about it from the officer's point of view - isn't it better to inconvenience a borderline sober driver for as long as it takes to test him than to risk letting a drunk go free who might harm someone? Right or wrong, this is the prevailing view.
So DON'T TAKE FIELD SOBRIETY TESTS!
Now, as for the breath (or blood or urine) test back at the station, that's a tougher question. That is Refusal if you don't take the test, and in most states you will lose your license for a full year without the possibility of a restricted (or "work permit") license if you fail to comply with that test.
So the question becomes, which is worse? The DUI conviction or the Refusal conviction. Generally, if you had a lot to drink, you are probably better off refusing to take that breath, blood or urine test down at the station (or in the hospital or whatever). If you are certain you only had one or two drinks, you might be better off taking the test.
Generally speaking your best bet is to refuse all testing. In any given situation, whether it is a DUI or other offense, if you are the subject of an investigation, the best thing you can do for yourself is to refrain from giving the police evidence. That means you do not permit searches, you do not make admissions or given written statements and you do not submit to field sobriety testing or breath, blood or urine testing.
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