Should I refuse the Preliminary breath Test - Drinking and Driving Defense Michigan
As a criminal defense lawyer, and one that defends a lot drinking and driving charges, there is one question that I am often asked at cocktail parties and other social events, and that is, should I refuse the breath test?
Should I refuse the Preliminary breath TestThe answer is yes, you should refuse the preliminary breath test when being investigated for a drinking and driving charge. There is one important caveat, make sure you know which test you are refusing because there are two breath tests, and one of them is of little consequence while the other is of severe consequence.
In the criminal law practice we refer to the initial test as the preliminary breath test. The preliminary breath test is the test that is done on the side of the road while you are being investigated for DUI before you have been arrested. The second test is the chemical test, which is usually administered at a police station after you have been arrested.
The penalty for refusing the preliminary breath test is a $200 fine and will not appear on your driving record or criminal record.
The penalty for refusing the chemical test is $1,500.00 in driver responsibility fees, 6 points are added to your driving record, and your license is suspended for a year - NO DRIVING AT ALL!
The Preliminary Breath TestThe preliminary breath test is a tool used by police to obtain a valid arrest. If you are being investigated for drinking and driving and you blow into the PBT on the side of the road and it reads .08 or more then you are going to jail.
Police are legally allowed to make an arrest on the results of the PBT alone, so even if you refuse the field sobriety tests, or you pass them, but then you consent to the PBT and are .08 or more you will be arrested.
Remember, this test is offered BEFORE you are under arrest. Refusing it is only a $200 fine. Refusing this test could result in you driving home on your own rather than driving to the police station in the back of a patrol car.
One thing that refusing this test will definitely do is give the police less evidence against you then they would have had then if you had taken it. It could mean the difference between getting a case dismissed on motion or not.
Implied Consent - The Chemical Test - DataMaster - Blood DrawMichigan also has a chemical test that falls under the Implied Consent Law. The Implied Consent law states that if you have been arrested for drinking and driving in Michigan then you have already consented to a chemical test. Refusing the implied consent test results in the loss of your license and other penalties.
You will know that you are being asked to take the implied consent chemical test rather than the preliminary breath test because you will be under arrest, probably have already been asked to submit to the PBT, and are most likely at a police station. The officer should also read you your implied consent rights from a form.
Police can also take you to a hospital for a blood draw. You do not get to choose which test you take. Police will likely opt for the blood draw when they suspect you are on drugs, or when there is an accident.
Refusing this test will likely cause you more of a headache then taking it unless your license is already revoked. When deciding if you should take this test or not you should weigh out the costs and benefits. Police are not required to allow you to speak to an attorney when deciding to take the test or not but many will. Refusing this test should be decided on a case-by-case basis so ask to talk to a lawyer.