December 26, 2014

Why you should always refuse the Breathalyzer and the Standardized Field Sobriety Tests

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PictureDon't do it! As a defense attorney and DUI practitioner, I get asked a lot of questions by my clients, friends, and fellow attorneys. But no question is more common than, "should I refuse the breathalyzer and/or the field sobriety tests (FSTs)?"

Like most legal questions, this one is not easy to answer, either. Any attorney worth his salt will tell you to refuse both. But, States have a mechanism in place to "encourage" you to agree to blow into the machine, which we will discuss.

This blog post is devoted to explaining why it is beneficial for you and your case to politely refuse the police officer's request to blow into the machine (both portable and the one at the station) as well as to refuse the standardized FSTs.

In an ideal world, you would refuse both the breathalyzer and FSTs, and the government would have no case against you (except for the officer's testimony). However, last time I checked, we do not live in a Utopia. Therefore, we must deal with the facts.

If you have consumed alcohol, the officer will be alerted to your red, watery, and bloodshot eyes, smell of alcohol, and slurred speech. This gives him reasonable suspicion that a crime has been committed which opens the door to further investigation, but not probable cause to arrest...
This is where the police officer will request that you complete FSTs, and/or administer his Portable Breathalyzer Test (PBT). He has authority to give you the breath test per KRS 189A.103(3). You are to refuse both! I cannot emphasize this enough.But, what if you don't know this important piece of advice, and submit to them (like many people do on a day-to-day basis)? 

Let's see what happens.

Well, first, if you have indeed recently been drinking, and are possibly close to or over that magic 0.08 figure, and you blow into the PBT, you've just given the police officer the probable cause he needs to arrest you! He doesn't need anything else -- even if you refuse the FSTs, he now has the lawful right to arrest you right on the spot.

Furthermore, the FSTs, even though the National Highway Traffic and Safety Administration (NHTSA) claims that they are tests of "divided attention" (just like when you're driving you have to be able to steer, and change gears if its a manual, while paying attention to your surroundings), ask yourself the following question: how many years have you been driving? Now compare that experience to how many times you've done FSTs. Chances are you've never done them. Ever. How is that fair? Well, according to our government, it is. And if you refuse to complete them, the police officer cannot use it against you in court (but he will do everything in his power to find cause to arrest you -- because, if you were sober, why would you refuse such "simple" tests?)

The tests are designed to fail you. That is the reality of it. Don't let anyone fool you otherwise.

Now you're at the station. Let's say you've submitted to the PBT, and blew over a 0.08, but refused the FSTs. You are now confronted with the Intoxilyzer machine. Kentucky, like most jurisdictions, has an implied consent statute in place. That means that by virtue of the Commonwealth issuing you an operator's license and permitting you to drive your vehicle of choice on Kentucky's roads you have "impliedly consented" to a test of your blood, breath, or urine (KRS 189A.103(1)). Note: this statute applies even if you are dead or unconscious (KRS 189A.103(2)).

Now, you have two options: One, submit to the test and risk the result, or two, refuse to blow. If you submit to the Intoxilyzer, and blow over a 0.08 you've just given the Commonwealth two avenues of prosecution against you:

1) KRS 189A.010(1)(a) - the per se DUI (Intoxilyzer result over 0.08); and
2) KRS 189A.010(1)(b) - the opinion DUI (police officer's testimony).

Had you refused the machine altogether, the Commonwealth can only pursue you for the opinion DUI.

But there's a small catch. 

Did I say small catch?

Some would say it's a pretty big one.

Per KRS 189A.105(2)(a)(1), if you refuse to submit to the blood, breath, or urine tests, the effects are as follows:

1) the refusal may be used against you in court as evidence of violating KRS 189A.010 (the DUI statute); 
2) your driver's license will be suspended until the resolution of your case; 
3) if you refuse the tests and are subsequently convicted of DUI, you will be subjected to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if you submit to the tests (which is 4 days instead of 2 for a first offense); and 
4) you will be unable to obtain a hardship license after the 30 day mandatory suspension period elapses (for first offense DUI).

Pretty harsh, huh?

As you can see, the Commonwealth has done everything in its power to scare you into taking a blood, breath, or urine tests. Nevertheless, despite these seemingly harsh consequences of refusal, it is still beneficial for you to refuse! It is harder to disprove a negative when the prosecution has the number that works against you, because people like to believe technology works properly. It is much easier to discredit a police officer on cross examination than to prove the a machine was faulty.

But aren't you forgetting something? What about the PBT, Mr. DUI Guy?

I'm glad you asked.

The PBT is inadmissible in Court. Per KRS 189A.104, no other breathalyzer machine except the one that is "installed, tested, and maintained by the Commonwealth ... at a police station or detention facility" is admissible in a court proceeding. So the PBT result must be excluded. A 2008 Kentucky Court of Appeals case explicitly stated that, "the pass/fail result of a PBT is admissible for the limited purpose of establishing probable cause for an arrest at a hearing on a motion to suppress." Greene v. Commonwealth, 244 S.W.3d 128 (Ky. Ct. App. 2008) (emphasis added). The prosecution cannot introduce the PBT result to the jury, and it is reversible error to do so.

If you refuse to do the FSTs and PBT roadside, your chances of getting arrested may not change. Even if you do get arrested, and continue to refuse to cooperate with any of the officer's requests to complete a breath, blood, or urine test as well as the FSTs, your Kentucky operator's license will be suspended while your case is pending (KRS 189A.107(1)). However! You've just significantly increased your chances of beating your DUI because the Commonwealth cannot pursue your case under the "per se" part of the DUI statute, namely the 0.08, and must rely on the opinion DUI -- which is based 100% on the police officer's testimony as to his observations and impressions of you, which is easier for an experienced DUI practitioner to attack and discredit on cross examination.

Thanks for reading, old friend.

Hope to see you again soon.

If you require assistance with a DUI, expungement, traffic ticket, or other criminal charges, please contact me or call me at (270) 945-2778.

The DUI Guy


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The acronyms DUI, DWI, OMVI and OVI all refer to the same thing: operating a vehicle under the influence of alcohol or drugs. The most commonly used terms are DUI, an acronym for Driving Under the Influence, and DWI, an acronym for Driving While Impaired.
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