Is it legal in Idaho to charge dui refusal with no breathalyzer offered?
1 attorney answer
There is no right to consult with counsel prior to evidentiary testing. The choice of test is up to the officer, not the suspect.
A DUI case usually results in a Notice of Suspension document being issued by the officer, containing a similar advice of rights regarding evidentiary testing - usually yellow with small print on both sides. In a refusal case the person has 7 days to request a refusal hearing with his local court. In a failure of testing, the person has 7 days to request hearing with Idaho Transportation Department.
I’m having trouble tracking your first sentence. Refusal of field sobriety tests is separate from any refusal of “evidentiary testing” of breath or blood (urine isn’t common).
“DUI refusal” isn’t a criminal charge - it’s just DUI. The refusal portion is relevant to the potential administrative suspension. If evidence of the refusal is potentially coming in at trial, the defense can ask the judge to keep it out and/or attempt to explain it to the jury.
Idaho has a case involving an unconscious driver, and another involving a semi-conscious driver, and our appellate courts have held that there is no requirement that the advisory be understood by the person, just that it be given to them.
This is intended for informational purposes only and should not be relied upon. Legal problems are very fact-specific and anyone with a legal problem should consult with an attorney.