The Consequences of Refusing a DUI Breathalyzer Test
If you have only had a small amount of alcohol, or if you did not even drink and feel as if you are being treated unfairly by the officer, it may be tempting to refuse to submit to a DUI test. That being said, it is crucial that you understand the possible consequences, and advantages, of refusing to submit to a blood-alcohol test. It is best to consult an experienced DUI attorney, to ask specific questions on the subject of the law in your state, and how the state treats a refusal to submit to a DUI test.
Implied Consent Laws and DUI
Generally speaking, everyone has the right to remain silent, and no one can actually be forced to give testimony against themselves. However, DUI law is a bit different due to implied consent laws. Implied consent laws are rules in certain states which require that you submit to certain sobriety or breath tests, or be subject to additional penalties. The theory is that as you make the choice to drive on a public roadway, you have already consented to the driving while intoxicated rules. Whether you are told by the officer or not, it is your right to refuse to submit to any kind of sobriety test, and this includes breathalyzers. Your refusal can, however, have various additional consequences. Depending on the DUI laws in your state, the extent of said consequences will vary, however, most will involve additional penalties.
Remaining Silent During a DUI Arrest
You should, under general constitutional theories have the right to remain silent, invoking this right should not be used against you. The exception to their constitutional theory is DUI law. Most states allow prosecutors and juries to make inferences about the decision taken to refuse any sobriety tests. It is expressly provided by several state statutes that refusal to take a breath test can be used at trial against a defendant. It is actually one of the few times in which a prosecutor is allowed to comment on the right of the defendant to remain silent.
Choosing to Take a Sobriety Test or Breath Test
It is difficult to make the decision of taking a sobriety test or a breath test. Most states do not allow for everything to be put on hold until you call and consult your attorney. Generally, when you inform an officer that until you have talked with your attorney, you will not take a sobriety test, this invocation of your right to counsel is considered a refusal of their breath or sobriety test. You are the one who has to make the decision of whether or not to submit to the breath test on your own. If you are stumbling because you are drunk, submitting to any kind of sobriety test will simply garner further evidence against you because you’re probably going to get arrested anyway. In this situation, unless you are required by law, you may want to refuse all breath or sobriety tests. On the other hand, if you do not think, or are certain that you are not intoxicated, you may want to consider submitting to the sobriety or breath test.
Taking Field Sobriety Tests
Most sobriety tests will be in the form of FSTs (field sobriety tests). FSTs require that you stand as well as walk in front of a camera. This is to demonstrate whether you are able to control your body. If you perform well during these terms they are evidence that can be persuasive to a jury to prove you were not intoxicated, even if you have had some drinks. A performance on FSTs that is good, can result in a reduction of charges via a plea bargain, and can potentially get a not-guilty verdict at trial, even if the result of the breath or blood test is against you.
If you make the decision to not take the sobriety test or breath test, bear in mind that many states have started adopting mandatory blood draws. What this means is that despite the fact that you did not consent to provide a blood sample for testing, an officer is able to transport you to a local hospital where they will draw a sample of blood. Usually, mandatory blood draws are for cases when there is an accident involving a repeat offender.
Field sobriety tests, sobriety tests, and breath tests go against most people’s major constitutional grain. Unfortunately, just about every court has upheld these as being legal. The one chance you have at avoiding the sobriety tests is knowing when you can avoid them, or avoid any situation that will cause you to drink and drive to begin with. If you are curious as to what other penalties you might be facing when refusing a breathalyzer in Texas, call our Houston drunk driving attorney at (713) 236-8744. Jim will help you to learn more about the specific DUI penalties in the state of Texas.