Blood Alcohol Test Basics From a DUI Attorney
Everything is done. You’ve been pulled over for suspected DUI. The police officer indicated that he smelled a strong odor of alcohol and noticed your bloodshot watery eyes, then proceeded to conduct field sobriety tests, which you did not complete satisfactorily. Then you were placed under arrest and taken to the police stop. After a short waiting period, the officer presents you with a decision – submit to a breath test or refuse it. You know this decision is important, but don’t know what to do.
Before I get too far, I want to let you know that I am a Maryland DUI attorney, Virginia DUI attorney, and DC DUI attorney. While this article is geared towards those jurisdictions, this is not legal advice. It is merely information, and is not specific to any situation. If you need legal advice or specialized assistance for your own situation, then you should contact an attorney that is licensed in your state.
If you have a license, you have given your implied consent to be given a chemical test for the purpose or measuring blood alcohol content. This may seem unconstitutional, a violation of your rights, or downright unfair, and such laws have been challenged numerous times under the theory that implied consent consists of unreasonable search and seizure under the Fourth Amendment. Generally, however, they been upheld by the courts as a valid exercise of the various states’ police strength. The reasoning is that driving is considered a privilege and the state has a authentic interest in keeping dangerous drivers off the road, and preventing injury, character damage, and loss of life.
But, you also have the right to refuse such a test in most instances. That’s correct – you can refuse to submit to the test measuring blood alcohol content. But how does the state reconcile that right to refuse with the implied consent you gave when obtaining a driver’s license? Easy – it creates various consequences for the refusal. More specifically, there is a good chance your license is going to get suspended for refusing to submit to the test.
So it seems as though the decision is between keeping your license and having it suspended? That makes the choice easy, right? Not so fast, my friend. There are many factors to consider when making this important decision. The question becomes what your overall goal is in this course of action. Do you want to keep your license? Do you want to avoid going to jail? Is this going to affect your family?
If your goal is to keep your license, believe it or not, there are arguments that can be made to help you keep your license. Perhaps the police officer did not properly advise you of the consequences of failing to submit to the breath test. Or maybe the test wasn’t offered in the correct timeframe. Also, there is a good chance your license will be suspended if you submit to the test and there is alcohol detected. If your goal is to stay out of jail, by refusing to take the test you are limiting the state’s evidence against you.
The point is that this is a balancing test. Of course, there is legislation in the works in some states which, if passed, would allow the police officer to acquire a warrant commanding your submission to such a test. I’m not certain that these laws will either pass or survive constitutional arguments, but they certainly could throw a wrench in your decision on refusal.