Is it actually best to refuse a breathalyzer test if you are intoxicated?
I would never drive drunk, I am just curious.
This scenario assumes that the suspect is right at or barely above the legal limit. That window of a BAC range where the officer knows you have been drinking, but cant tell just by looking at you whether you are over .08 or not.
It wouldn't work for someone who is fall on their face drunk. Then the officer's observations alone are enough to convict you.
But let's apply this to a driver whose BAC is say .085 or .09. The officer doesn't know without a breathalyzer that your BAC isn't .07.
In my State, you sign an agreement when you get your drivers license that you will submit to any and all breathalyzer tests. Failure to do so will result in a DMV suspension of your license for 6 months.
But if you are convicted of a DUI your license will be suspended for at least that long anyway, and you will face additional penalties on top of that.
If refusing the BAC test begrudges the State of that one smoking gun piece of evidence they need to convict you, then you may be in the frying pan, but at least you didn't jump into the fire.
- CathyLv 44 months ago
In Pennsylvania it is. You will lose your driver's license for a year but you will not be convicted for DWI. At least that was the case 10 years ago
- BruceLv 74 months ago
In my state, you get your license revoked for a year if you refuse. This is in addition to whatever time you lose your license for if convicted of drunk driving.
In my state, if you are over 0.15 you are mandated to install an ignition interlock device. They also order it installed if you refuse. If you think you are under 0.15, it is to your benefit to take the test.
If this is a second offense or higher, they will get a search warranty for your blood and get their test anyway.
- brian 2010Lv 74 months ago
No. This is mandatory and refusal to do so can result in you being taken into custody.
- 4 months ago
Actually, several of the circuit courts of appeals have reached the conclusion that "implied consent" laws are not effective consent for purposes of fifth amendment law, because the state does not have the privilege to coerce a person to give up their constitutional right to refuse a search and seizure absent probable cause or a search warrant, the same as any other search. (which a breath test is a "seizure" of evidence.) The fourteenth amendment makes the fifth amendment compulsory on the states without option, and also forbids the states from scheming to simply circumvent the application of the law by "claiming" consent which is really in essence "coercion" (See, e.g. Miranda v. Arizona, etc. - The underpinning of Miranda is that the government is prohibited from using any kind of coercion in order to obtain things of evidentiary value, such as, inter alia, a confession.) Rather, any ambiguity over whether consent was coerced is generally to be resolved in manner against the government. Also, because there is no way to do an alcohol test without also having collected DNA, it becomes that the police are also obliged to the case law pertaining to DNA collection, which universally requires a search warrant, which must narrowly circumscribe the manner in which law enforcement may use the DNA.
Several other circuits have disagreed with it, and the supreme court has remained silent on the issue thus far. Therefore, it actually IS probably best to refuse the test, because it then makes things more difficult for the government, and then to file a federal civil law suit against the police officer and any other government parties involved once your license gets suspended under 42 U.S.C. 1983 for several hundred-thousand dollars. Then you offer the state the option of dismissing the law suit on the condition of full reinstatement of your license. (Something they will agree to in front of the right judge because they don't want to loose the big bucks and have the police standing out on the curb homeless with nothing but their dirty underwear.), and worse case has potential to become a test case for the supreme court to rule to invalidate ALL implied consent laws across the country.
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- ArimatthewdaviesLv 74 months ago
I've touched on this exact same subject many a Time. If you take the breathalyzer and you fail it they're going to arrest you for drunk driving. they're going to tow your car you're going to get your driver's license suspended and you're going to have a DWI on your license. If I was you in such a circumstance I would first tell the officer I'll be glad to take a test for sobriety but I want to do so in the presence of my lawyer. And I won't take a test until my lawyer gets here. The officer might arrest you they're going to tow your car. Unless there is a passenger in the car that can drive it away. But they won't be able to convict you for DUI. and when they take you down to the station call a lawyer quick and tell him to get down to the station. And then submit to the test. By that time you'll probably pass it. Unless you were really drunk. It's better to let them just take your license then to have a DWI and have them take it anyway!
- Michael ELv 74 months ago
"Officer, I'm not sure if I should refuse or not. I want to talk to my lawyer first."
Then, if they continue to insist, follow directions and cooperate (to the best of your drunken ability).
The goal is to tread that fine line between refusing (and automatic lisence suspension) and admissible evidence.
- YetiLv 74 months ago
Depends on location, and local laws. Some locations do automatically suspend your license for a year, or similar, if you refuse a breathalyzer.
- AlexLv 74 months ago
Not really. A lot of states will nail you for that. Maryland will suspend your license for 270 days for the first offense. The second is a full year.
And even if that's not the case in your state...they're going to run sobriety tests on you (follow the pen, walk the line, etc) to see if you're in the influence of anything mind altering.
They'd have you in either case.
- 4 months ago
You can't refuse, if they ask by law you gotta comply or they arrest you anyway
- TevaLv 44 months ago
If you want the inconvenience of having to go to the Staton instead of going on your way, yes.