To Blow, Bleed, Or Say No. - Should I refuse a breathalyzer test or field sobriety test?
05/ 02 / 16 Filed in: DUI | Legal
This is complicated, and opinions are all over the place with regards to this topic, so I’ll try to relay as much as I can.
When you get pulled over you are being investigated for a crime, whether one has been committed or not, whether it’s speeding or a DUI. As you learned from fifth grade on under the power of the 5th Amendment you do not have to provide evidence against yourself.
Except you kind of have to.
Technically you can refuse answering any question the police officer asks you outside of identifying yourself. You can refuse the field sobriety test, and the field breathalyzer. These are your rights. However, they cops have legal loopholes around it. If you’ve felt that this whole thing is rigged against you, you’re not too far off.
When you get your drivers license you sign a number of things, check a bunch of boxes without reading them or giving them much thought. It’s the American way. Unfortunately some of those can come back to bite you.
When you get your license you’re giving the state implied consent for them to test your BAC for alcohol. If you refuse to do this, you’re now breaking the law, and you can still get the DUI on top of it. Some states will even use your refusal as evidence that you were intoxicated. Ridiculous.
Refusal laws vary heavily from state-to-state. Texas just suspends your license for 6 months, Utah gives you a court hearing where you have to argue your reasons for refusing and if found to be unreasonable you get an 18-month suspension. Yikes.
In California, where I got mine, the way it works is that you can refuse the field sobriety tests, and the field breathalyzer with no real penalties except to know the cop is absolutely going to be a jerk to you and definitely take you downtown. From here you are given the choice of the station’s breathalyzer, which is a heavily regulated and court-admissible machine, or a blood test, which has to be done by a nurse, so they may take you to a hospital instead. Refuse either of these and you’re faced with a 1-year suspension, possible 96-hour jail sentence, and a 9-month DUI program. Harsh.
The penalties are rough enough to make it a really difficult decision - 1 year without driving, especially in a place as spread out as California would be incredibly difficult. It’s enough to make people take the pragmatic route and say “Well, if I do blow and get a DUI, I’ll be out of a license for 30 days minimum and 5 months maximum…”, which is a really weird place to be in.
Texas and a few other states often have “No Refusal” weekends - where they have a judge or magistrate on call. If you refuse to do your tests, they order a warrant, and force you to submit to these tests. Some cities have this law on the books 24/7. It’s disparaging to see governments willfully take the rights away from people, even if it is the rights of criminals.
Understandably if you are on probation for a DUI, you cannot refuse. I’m a little bit more ok with this since it’s a part of my conviction, and I have been made well aware of the conditions around it. The same goes for if you’re under 21, which I get as well (sorry, kids).
The Breath Test
I wasn’t asked which test I wanted to do. I was told once I was at the station that I could do a blood test, but that would mean a lot of travel and was basically given a lot of implications that they’d make it rough for me. Great. They took me into their testing room and had me blow two times, fifteen minutes apart, all while telling me to blow harder (something they’re technically not supposed to do). I blew over and that was it.
In the discovery part of the trial your lawyer will look through the documents that the police give them about the machine - last date of calibration, self-tests, etc. Once upon a time you might have been able to rely on the police letting routine maintenance of this machine to fall through the cracks, but as the machine is a proven money maker for them, I can’t imagine that happens all that often.
The Blood Test
If you opt for the blood test the cops will either take you to a hospital or have a nurse-on-staff draw blood from you. They can’t do it themselves, so don’t let them. The blood test is a more accurate test, which can either work for or against you when compared to the breath test. More importantly it provides a sample that can be retested, has lot of human components that would disqualify it in a trial, and things can go wrong. One of the guys in my DUI class claims that they may have forgotten to refrigerate his blood, causing fermentation and a higher BAC result (however he didn’t take his case to trial so it’s all moot, and who knows what the truth may be.)
However, it’s not without it’s problems - if you drank and then immediately began to drive, the time that it took you to get pulled over, taken to the station, then subsequently taken to the hospital may allow your BAC to peak at a much higher reading than the BAC level of when you were driving.
Getting your BAC level back from the lab can take some time, which can lead to 1) a period of a few weeks where you have your pending results hanging over your head, stressing you out at every turn, and 2) a situation where you may have to travel back to the police station to book yourself for this crime.
Some people are just afraid of needles, too.
So, what should you do? Sadly, I can’t answer for you. What’s important is that if you choose to do a test only do one test. That’s all you’re required to do. Often cops will try to mount evidence against you, do not help them in this.
I’ve looked back on my case and gone back and forth on what I should have done. The decision is a lot easier knowing my BAC, but at the time of my arrest, I had no idea. Honestly, I don’t think I could have made the decision at the time. I think I would’ve been incredibly afraid of the one year without driving for refusal. Oddly enough, getting convicted of a DUI has allowed me to drive much more than if I had refused. I felt I didn’t have an option in blowing, but if I went and took the blood test it could have easily risen to .16, where penalties would’ve been much worse than the ones I received. Plus it was more convenient, which sounds stupid and flippant, but in dealing with all of this, especially the police, there’s a large part of you that just wants to get it over so you can go wallow in self-grief.
Sometimes there’s no good options.
If I get pulled over again? Well, having gone through this, let me tell you - I’m doing everything in my power not to let that happen. The Uber bills have been stacking up, and taking the train can be a drag, but it beats the drag that would be on me if I had to go through this. Since I now have a prior, I would be not allowed to drive for two years if I refused. That’s scary. I don’t know that I can do that.
What do lawyers say? In doing my research for this I’ve found that they’re split - some say you should absolutely never take the tests, some say refuse every test you can, the field sobriety test and field breathalyzer, and take the blood test. Some attorneys like the fallibility of the breath test. Some point out that in most cases it won’t matter a lot which test you take.
The classmates of mine that I spoke to who refused tended to regret it, mostly because they were under the impression that by not blowing they thought they could avoid the DUI charge. They could not, and received a long suspension and class because of it.
Again, if you’re out and have had too much to drink, call a cab, even if it means that you’re going to get a ticket on your car the next day. It is all so, so, so, so, so much easier than this. I’ll gladly take a $72 street cleaning ticket than have to make that decision.