This is probably the most common question asked of a DWI/DUI defense lawyer.
The short answer is: You should take the test with a few important caveats.
In most situations, test refusal is a more serious crime that is easier for prosecutors to prove at trial. Because test refusal is a crime, a lawyer cannot counsel a client to refuse the test and commit a crime. However, a lawyer can counsel a client regarding the consequences of taking or refusing the test and recommend that a driver obtains an independent, additional test at the driver's own expense.
Despite the general rule that a driver should take the test, the Minnesota Legislature has created a perverse incentive for certain first-time offenders with high alcohol concentrations to refuse the test, which can avoid the imposition of whiskey license plates and use of an ignition interlock device for one year. Refusal in this context also can reduce the license revocation period by 335 days.
Due to the complexities of the testing decision, it is best to speak with a lawyer before making the testing decision. Generally, a driver has at least 20 minutes to contact a lawyer before agreeing to take or refuse the test. The police provide directories of DWI defense lawyers. A person should call as many lawyers as it takes to reach one in the relatively short time period allotted for such calls. Lawyers generally do not charge a fee for these brief consultations. It can, however, be difficult to reach a lawyer during late-night hours.
Therefore, someone should keep calling and leaving messages until a lawyer is reached for a consultation. The consultation does not obligate the client to hire that lawyer to defend the case. It is simply a brief opportunity to obtain free legal advice prior to making a very important decision.
As discussed in more detail below, certain first-time offenders who have alcohol concentrations of 0.16 or more can avoid whiskey plates and use of an ignition interlock device for one year if they refuse to take the official test offered after arrest. In addition, the license revocation period can be as short as 30 days if drivers who would have an alcohol concentration of 0.16 or more refuse testing in a first-time offense. Thus, the legislature has created a perverse incentive to refuse testing in first-time DWI cases where the drivers' alcohol concentration is 0.16 or more.
A first-time offender who has a child under the age of 16 in the vehicle should not refuse testing because it will trigger vehicle forfeiture.
When a driver has at least one prior DWI conviction or DWI license revocation within the previous 10 years, the legislature has created no incentive for a driver to refuse testing, except in the case of a DWI accident causing bodily injury to another person.
The preliminary breath test (PBT) administered at the scene of the DWI arrest is not the official test. The PBT simply is a tool used to decide whether to arrest someone, but it is not admissible at trial to prove a driver's alcohol concentration. Due to its unreliability, the PBT lacks foundation to be admissible at trial, except in limited circumstances.
After a DWI arrest, drivers are taken to the police station or jail facility and offered an official test to determine one's alcohol concentration. There are three approved tests in Minnesota DWI cases. They are a breath test (via DataMaster DMT machine), blood test, or urine test. A driver will be offered one of these three tests. State troopers often will read the Implied Consent Advisory in the squad car, and a driver must decide to take or refuse the official test while still seated in the squad car. If a driver agrees to take the test, the test will be administered at the police station, jail facility, or a local hospital in the case of blood testing.
Can a Driver Choose which Test to Take?
The short answer is: No, with one important exception in the case of blood or urine testing.
Due to its ease and immediate result, most drivers are offered a breath test, which is administered at the police station or jail facility following a DWI arrest. A driver who is offered a breath test must either take the breath test or be charged with test refusal. A driver has no right under Minnesota law to require the police to offer a blood or urine test in lieu of the breath test. If a driver is physically unable to provide an adequate breath sample due to ailments like asthma or emphysema, the police must offer the driver a blood or urine test. Physical inability to provide a breath test is a rare occurrence. If a driver agrees to a breath test, he should make sure that he provides an adequate sample. Failure to blow into the machine adequately is considered test refusal.
At times, the police will offer a driver a blood or urine test in lieu of a breath test. This occurs when the breath machine is not functioning properly or when a driver is suspected of being under the influence of a controlled substance.
A driver who refuses a blood or urine test must be offered another type of test due to the invasive and sensitive nature of blood and urine testing. For example, a driver who refuses a blood test must be offered a urine or breath test before the police can charge him with test refusal. A driver who refuses a urine test similarly must be offered a blood or breath test before he can be charged with test refusal.
Because of the right to an alternative test, police officers often ask a driver if he will submit to a blood or urine test, giving the driver a choice between the two. If the driver selects a urine test, it is important that the driver provides a urine sample in a timely manner. It is common for people to experience "stage fright" in providing a urine sample. Failure to provide a urine sample in a timely manner can result in a charge of Test Refusal.
Should a Driver Take a Blood or Urine Test?
In most situations, it is preferable for a driver to submit to a urine test because the test result usually is lower, and a urine test is more susceptible to challenges in court.
Among the three types of tests, blood testing is the most accurate test to determine a person's alcohol concentration. Despite its accuracy, blood testing tends to provide the highest results and be the most difficult to challenge in court. This conclusion is based on the author's anecdotal evidence in defending hundreds of blood and urine cases.
Breath and urine testing are used as alternatives to approximate the amount of alcohol in the bloodstream. Alcohol in the bloodstream is what causes actual impairment in the brain. Alcohol in one's breath or urine is a byproduct of alcohol in one's blood.
Because blood testing is invasive, time-consuming, and costly, police generally prefer administering a breath or urine test that does not require a trip to the hospital. Breath and urine testing are designed to approximate one's actual blood alcohol concentration, but the State's scientists were careful to avoid, albeit imperfectly, the situation where breath or urine testing over-estimates one's actual blood alcohol concentration. Therefore, breath or urine testing tends to produce lower test results than blood testing under ideal conditions.
In addition, the actual alcohol concentration in a urine sample is reduced by one-third before it is officially reported in a DWI case. The one-third reduction is used to account for the tendency of urine tests to overestimate one's blood alcohol concentration based on urine pooling in one's bladder before testing. Such Pooling may overestimate one's alcohol concentration by 10 to 20% (or more), but the State reduces the alcohol concentration by 33% to account for this problem. Anecdotal evidence suggests that urine testing results in lower alcohol concentrations in the vast majority of cases.
See Part 2 for more information