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Can I Refuse a Breath Test? When can the police demand a breath test? The legal point that you may be overlooking is the fact that driving in this country is not a legal right, but a privilege. You are also not granted the privilege to operate a motor vehicle unless you agree to abide by certain regulations and conditions. In all 50 states, those conditions include something called "implied consent. It was there, in the fine print. Typically, most states implied consent laws include:.
In some states, the implied consent terms are printed on the back of your driver's license itself. Regardless of what the implied consent laws are in your home state, you are subject to those in the state in which you are driving. Even though you agreed to abide by these conditions when you applied for a driver's license, you can still refuse to take the sobriety tests. However, in every state, refusing to submit to such testing is itself a violation that carries its own penalties, regardless of whether you are convicted of drunk driving or not.
In 10 states, refusal to submit to testing can result in criminal penalties as well as civil ones. The Supreme Court decision of Birchfield v. North Dakota allows people to refuse warrantless blood tests without being criminally punished, since blood tests can be considered invasive. However, refusing to submit to a breath test can still be punished. It's the job of our law enforcement officers to keep the roads safe for everyone.
If the officer believes that you are intoxicated and a danger to yourself and the public, they can arrest you just because you refused to take the tests. In most states, the officer can immediately confiscate your driver's license as an administrative, not criminal action, because you broke your written promise to submit to such testing when you applied for that license. You may be thinking that is a violation of your right against double jeopardy and being punished for the same crime twice.
But in most states, taking away your driving privileges has been set up as an administrative function of the Department of motor vehicles and not a function of the criminal court. After all, the Department of Motor Vehicles granted you those driving privileges, so it can take them away. If you refuse the officer's request for sobriety testing, your license can be immediately suspended for 90 days up to two years, depending on the laws of the state in which you are arrested.
You may also have to pay fees and penalties before your license can be returned. One way to keep driving, legally, and reduce any overall suspension period that may be imposed, whether it be pretrial for refusal or post-conviction after a finding of guilt, is to have your attorney petition the court for an ignition interlock device IID. This is something that needs to be done at arraignment, which is yet another reason to hire an attorney right away.
You may challenge the refusal accusation at a hearing, which takes place within 30 days of requesting it, but must waive your right to this hearing in order to be eligible for IID.
This is an important decision that must be made before you go to court for the very first time. The main reason is that breathalyzer machines are notoriously prone to errors. Although field sobriety tests are often unreliable because they rely upon the judgment or opinion of the officer giving the test, breath tests are equally unreliable, but for different reasons.
During a breathalyzer, the goal is to measure the percentage of alcohol you exhale. Typically, the amount of alcohol in the blood is 2, times the amount found on the breath. The problem is that everyone is different, and our bodies will react differently to just about any variable.
For example, the true ratio between blood and breath may vary from 1, to 3, However, it does prevent the officer from gaining evidence against you. Breathalyzer tests are not as accurate as a blood or urine test, which are performed at the police station. If you refuse to take the test for a second time, the charges against you will be more severe. In most cases, your license will be revoked for many years.
When you refuse to perform a preliminary breathalyzer at the location where you were pulled over, the officer must legally inform you of what the legal consequences are for doing so.
After you have been informed of the legal repercussions, you can reconsider your decision.
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