The best thing to do is to advise the officer that you want to have your lawyer present before you say or do anything. The portable breath test is not mandatory and there is no penalty for not taking it. You may tell the officer that you would like to prove your innocence and cooperate in his investigation, but you want to talk to your attorney before you say or do anything. NEVER consent to a search of your car, even if you know that there is nothing bad there. If you do not consent, you can challenge the search IF something bad is found, if you consent, you waive most or all challenges to whatever the cop finds or plants there. Advise the officer that you would like to prove that you are not drunk by taking his tests, but you have medical problems that may make the test unfair and that you want to talk to you attorney before deciding to take the tests or no. IF you try the tests and fail them (and they are designed for failure), the cop will say it is because you are drunk, regardless of the reason you failed them. They are voluntary and there is no license suspension if you refuse them. You should give the officer your driver's license, insurance, and registration if he requests it. Other than that, start telling the officer at the first question regarding drinking that you want to talk to your lawyer before you say or do anything further. If you do not tell the officer you are exercising your right to counsel and to remain silent, your silence may be used against you. Two things to remember, do not lie to the cop and do not admit anything, including that your were driving or if there is an accident, what time the accident occurred. This little bit of information may be all the cop needs to charge and/or convict you. IF you are 21 or over and have not had more than one NORMAL drink, you may agree to take the portable breath test. But, even if you are not over the limit, you can still be arrested and charged with OVI.
You should not say anything. It is your right to remain silent or to ask for an attorney.
Anything you say to the officer can be used against you.
The information provided should not be considered legal advice. I am not licensed to practice in any State other than Ohio. The results of your case will depend on the presentation of evidence, the law and other factors that may change depending on an in depth analysis of the facts of the case. Please see an attorney before making legal decisions.
Simply state "I am not answering any questions" if the police continue to ask you questions other than who you are and where you live. You should not take any portable breath tests (at the scene) or attempt the field sobriety tests.
Further, police officers are NOT permitted to give you legal advice, especially when that advice is false!
Dan J. Weisenburger
Attorney at Law
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