Should I request an attorney before I take the breath test?

THE DUISEATTLE.COM BLOG : Should I request an attorney before I take the breath test? window.fbAsyncInit = function() { FB.init( { apiKey: 'a279adbe87e2b3c505e777af99a5260d', xfbml: true, version: 'v2.2' } );};( function() { var e = document.createElement( 'script' ); e.async = true; e.src = document.location.protocol + '//connect.facebook.net/en_US/sdk.js'; document.getElementById( 'fb-root' ).appendChild( e );} )(); THE DUISEATTLE.COM BLOG Your 2015 Community Resource for DUI and Criminal Traffic Defense in Washington State. Writings of Seattle DUI Lawyer and Seattle Criminal Lawyer W. James Kotlowski. A Discussion of Washington State DUI, Physical Control, Felony DUI, Vehicular Assault, Reckless Driving, Reckless Endangerment, Negligent Driving, Deferred Prosecution, Department of Licensing and Criminal Traffic Law Issues. OVER 20 years of experience. Call or Text right now - 206.335.2422 for a Free Consultation. HomeArchivesProfileSubscribe Lawyer Walter Kotlowski | Top Attorney DUI When can I enter a deferred prosecution?Who pays for the deferred prosecution treatment?What makes you eligible for a deferred prosecution?Can I waive Arraignment on my DUI?Do the "mandatory" DUI 30-day probation "violations" apply to reductions?What is Day Reporting in Seattle Municipal?Can I vacate a DUI or Physical Control?Will I receive "good credit" credit on EHM time?Are DUI arrests down in Washington?What happens if I do not meet the 4-month Ignition Interlock requirement? Search OFFICEContact Information
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April 12, 2015 Should I request an attorney before I take the breath test?Absolutely. Upon arrest for DUI, you should ask to speak with an attorney immediately or as soon as possible. Do not make any statements to the police. There is an attorney (public defender) on call for that purpose. The officer will help you get in touch with them.

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Poll: Should Minnesota Lower the Legal Drinking Age?

In 1984 President Reagan signed the Uniform Drinking Age Act, requiring all states to raise the legal drinking age to 21 or face reductions in their federal highway funding. Since 1995, all 50 states and the District of Columbia have complied.

But now, Minnesota lawmakers are considering legislation that would roll back the state’s legal drinking age to 18. State Representative Phyllis Kahn has proposed legislation that would allow individuals over 18 to be served alcohol in bars and restaurants. The bill would still ban retail sales of alcohol for people under 21.

Kahn—whose district area includes the University of Minnesota—argues that serving alcohol to young adults in public would teach them to drink responsibly and reduce binge drinking. And she notes that the measure would be good for the economy as it would likely increase sales in bars and restaurants.

Supporters claim that many 18- to 20-year-olds already drink, especially on college campuses, and making alcohol legally available to this group could decrease the “forbidden fruit” allure of drinking.

But critics point to studies linking a lower drinking age to increased traffic crashes and to research that shows teens and young adults respond more adversely to alcohol than older adults. In addition, MADD and the National Traffic Highway Administration (NHTSA) estimate that raising the drinking age to 21 nationally has saved approximately 900 lives per year.

If the bill is approved by the Minnesota legislature it will take effect in August.

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To Blow or Not To Blow – Should I Take The Breath Test

To Blow or Not To Blow – Should I Take The Breath Test | Orlandoduiteam#topnav ul li a,.sidebar h4,.tk-news-gothic-std{font-family:"news-gothic-std",sans-serif;}p{margin-left:0 !important;}a{color:#0D8BB7 !important;} Orlando DUI Team Published by Orlando, Florida DUI Lawyers :: Katz & Phillips, P.A.(321) 332-6864 HOMEBLOGCONTACT US David S. Katz Founding partner
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As a DUI practitioner, the most frequent question I am asked is, “should I take the breath test?” The answer is not a simple “yes” or “no.” First, it is important to know that under the ethics rules of the Florida Bar, an attorney cannot give advice to someone to break the law. By law, you are required to take the breath test if you have been lawfully arrested for DUI. Therefore, my answer is required to be, “yes, you should take the test.” However, even without the requirement that I answer yes, this would likely be my answer anyway.

If you refuse to take the breath test, the prosecutor will argue that the reason you did not take it is because you knew you were guilty and you did not want a jury to know “that number.” This is called consciousness of guilt. It is a strong argument for the prosecution. Of course, if you do not take the breath test, a skilled DUI Defense Attorney can counter that argument, but it is a persuasive argument for the other side.

If you do take the breath test, a skilled DUI Defense Attorney should be able to make numerous challenges to the admissibility of the test. In Florida currently, we are challenging the admissibility of the breath test based on machine errors, human errors, source code issues and non-compliance with the administrative rules that govern the procedures for breath testing.

In Orange, Osceola, Seminole, and Lake Counties, we have successfully been able to keep breath test results out of our cases for many years. The battle over admissibility of results is still being fought in other counties throughout the state. The two most recent challenges are based on the Florida Department of Law Enforcement’s failure to follow the administrative rule. These will be discussed in the next two blogs.

If you are ever faced with the decision to take the test or refuse, remember that in Florida a first refusal is not a crime, however, your refusal to take the test can and will likely be used against you in court. If you refuse to take the test and you have previously refused to take it, you are committing a separate crime which is punishable by up to 1 year in jail, even if you beat the DUI charge.

Blow or refuse, the choice is yours, however, with the right lawyer fighting for you, you may be better off taking the test. The results can only hurt you if a jury hears about them.

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

Don'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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Should I Take a Breath or a Blood Test?

One of the most common questions I get as a DUI defense attorney is “Should I have taken a breath test or a blood test?” As with many questions in DUI law, the answer is, “It depends.”

Just to be clear, I’m talking about a breath or blood chemical test required under California’s implied consent law. This does not include the pre-arrest preliminary alcohol screening test. Although a breathalyzer, the “PAS” test is not a chemical test and is not required under California law. The chemical test, on the other hand, can either be a breath or a blood test and is required under California law once a person is lawfully arrested on suspicion of a California DUI.

The DUI blood test is much more accurate than the DUI breath test. The blood test is far less likely than a DUI breath test to produce a false reading. Another benefit of a DUI blood test is that a sample of the blood is saved for future testing by the DUI suspect’s defense attorney. The defense attorney can have the sample tested by its own blood analyst to contradict the results of the prosecutor’s analyst. This is called a “blood split” and it is commonly used in DUI defense.

Having said that, the blood test can still be subject to scrutiny. See my previous post: https://www.duiblog.com/2014/09/15/the-dirty-skin-defense/

In other words, the blood test may be good for someone who is under the legal limit because it is more accurate. The blood test might be bad for someone who is over the legal limit because it is more difficult to refute the accuracy.

The DUI breath test, on the other hand, is far less accurate than the DUI blood test. Breath tests can provide false readings for a number of reasons. See Lawrence Taylor’s post: https://www.duiblog.com/2014/09/09/are-breathalyzers-accurate/

While California defense attorneys cannot challenge the unreliability of breathalyzers on a general basis, they can provide evidence that the particular breathalyzer used on the DUI suspect was inaccurate.

The breath test may be good for someone who is over the legal limit because it is easier for a California DUI attorney to refute the results. However, many people who are actually under the legal limit may test over because of the breath test’s inaccuracies.

If you are fairly confident that your blood alcohol content will below the legal limit of 0.08 percent, you’re probably better off opting for the blood test because it will accurately show that you were, in fact, under the legal limit. However, if you think there is a chance that you could be above the legal limit, you might be better off opting for a breath test so that your attorney can challenge the results if you test above the legal limit.

This entry was posted on Monday, November 17th, 2014 at 7:28 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

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Why You Should Fight Your California “Driving Under the Influence of Drugs” Charge

As is most often the case with a holiday weekend, California law enforcement officers stepped up their patrols this past weekend. Not only were they operating a number of DUI / driver’s license checkpoints but they were also engaging in roving DUI saturation patrols. If you were unfortunate enough to be arrested for driving under the influence of drugs, here are a few reasons why you should definitely fight the charge.

First, because of the fact that it was a holiday weekend, officers were expecting drivers to be under the influence. This inherent bias can easily lead to incomplete or shoddy investigations…investigations that lead to an illegal or hasty arrest. We will highlight the officer’s bias to prove that…in the officer’s eyes…you were guilty from the word go.

Second, unlike a DUI involving alcohol…where the jury typically sees a blood alcohol reading…allegations of driving under the influence of drugs “DUID” are often more difficult to prove. Even if there was a blood test that revealed drugs in your system, that doesn’t mean that you were under their influence at the time of driving. We know the most persuasive arguments to convince prosecutors, jurors and judges that innocent explanations such as fatigue, anxiety or illness could have been responsible for your alleged impairment.

Third, even if it appears that you were guilty of the offense, if we can present proof that the collection, storage or analysis of your blood test was improper, the prosecutor will likely reduce or even dismiss your charges.

These are just a brief sample of why it is important to fight a California “driving under the influence of drugs” charge. The fact is that there are countless other defenses that…depending on the specific facts of your case…may also be applicable. Don’t assume that just because you were arrested for DUI means that you must be convicted of DUI because it just isn’t the case.

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Why should I retain your firm to defend me?

Posted On: December 14, 2010 by Bruce M. Robinson

Funny thing happened to me while I was in DUI Court today. My client was facing a pending jail sentence so we went to Court to try to change that; we were successful and kept him out of jail. Another satisfied client; but, that is not the reason for this post. The reason for the post is one of Howard County's men in blue was present in the Court room and he asked where my blog articles were, the officer said "you have not posted anything in a while". I asked him, do you actually read what I post regarding DUI and drunk driving. He said "we do".

Wow! The police actually read what we have to say, that's great. Maybe it helps on all sides, maybe it helps get better behavior on both sides of the DUI equation. Maybe not, maybe it only helps them be tougher on the DWI Defendants. Either way, our goal here is to seek fairness on both sides of the DUI equation so Defendants can be treated fairly in Court. Unfortunately, there are many Courts in Maryland where a Defendant is guilty merely because s/he walked into the Courtroom.

That means, citizens should know their legal rights and utilize them as they see fit. That means, knowing that one does not have to do a field sobriety test at a DUI stop and knowing that anything they do can and will be used against them in Court. Knowing that right, and then electing to perform roadside gymnastics is totally up to the person. However, not being coerced into incriminating oneself is an important Constitutional Right that we all share.

Then comes that pesky breath machine. Do I blow? Do I not blow? I get asked that question everywhere I go. It's an important question which does not have a simple answer to fit all people. The answer changes based upon individual circumstances. However, it is refreshing that the police are required to advise you of your legal rights before asking a Defendant to make that important decision. You also have the right to communicate with an attorney prior to making that decision. Refreshingly, most police officers will let you exercise that right. Those that do not will suffer the consequences of that decision in Court.

Finally, I remind the reader that time is always of the essence after an alcohol related stop. You should seek the consultation and advice of a qualified DUI attorney at once so as to not compromise your rights and/or lose your license to drive.

So, getting back to the original question which is why should I retain your office?

Well, aside from nearly 20 years of DUI defense experience and know how, I can also say that if the police are taking their time to read and follow what we have to say regarding alcohol and drunk driving, you should too.

Call anytime for a free consultation: We are always available nights and weekends for your convenience. 410-484-1111.

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What should the BAC legal limit be?

It's simple, the level should be zero. That way all drivers know not to drink if they are driving a car. Very simple and clear for all parties. Simple to enforce too.

The present system is the dumbest possible thing because it tells drivers they may in fact drink alcohol but they must know subjectively when to stop drinking, which gets harder to do once consumption has begun. Then people have two questions to answer, am I over the legal limit or not and will I get caught. If they do get caught, can it be beaten?

The easiest most clear cut and god forbid intelligent thing to do would be to make the limit zero, then everybody knows EXACTLY where they stand before turning the key.

But that would be way to easy and make too much sense for any US Government to employ. They would rather employ stupid mottos like over the "limit" (.08) under arrest which is not even remotely accurate or fair to the driving public as it is not an accurate reflection of the law. Thus we have a stupid subjective law (ie. The number changes over time and will continue to do so in the future) which the government itself does not know the ramifications to properly warn the motoring public.

What a ridiculously silly situation we find ourselves in; well, at least until somebody with a brain figures out this is not an effective way to save human life. It is stupid.

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