May 10, 2016
To Refuse Or Not: That Is (Always) The Question
refuse DUI OVI breath test Attorney

            As a DUI defense practitioner the question I am most often asked is “should I refuse to take a chemical test?”  The reason this question is asked so often is because people are getting different answers from different sources and trying desperately to sort through the dross.  In a world of grays, I am going to give the most black and white answer I can.

            Before I go further I want everyone to understand that driving a vehicle while impaired is exceedingly dangerous, and the best way to prevent ever having to answer this question is to avoid drinking and driving.  Many lives are lost on our roadways every year due to alcohol related offenses. If you think you’ve had too much to drink, don’t drive.

            So, why is this question so difficult?  An increasing number of jurisdictions have policies in place where they will not negotiate with people who refuse to provide chemical tests at the request of an officer.  Thus, the reduction to a lesser offenses, such as physical control or reckless operation becomes unavailable to that DUI offender.  In these jurisdictions this can mean that the offender will be stuck with a DUI conviction unless their attorney can win the case through motion or trial.           

            In many jurisdictions, if you have NO PRIOR DUI OFFENSES, and your chemical test is over the legal limit by only a small margin, the State often is willing to reduce the DUI to a reckless operation or some other lesser offense provided you are willing to attend an alcohol awareness class.  However, providing a chemical test comes at great risk.  If a person provides a test that is over the legal limit for blood, breath, or urine, then the prosecutor has a much easier case.  To understand why, you must first understand the two ways the State can charge you with DUI.  The first way the State can charge you is called a “per se” violation.  This simply means that you provided a chemical test above the prescribed legal limit.  It does not have to prove that you were impaired, only that your blood alcohol content exceeded the legal limit.  That’s all.  Thus, if the chemical test is deemed admissible by the court you will more likely than not be convicted of DUI. 

            If you refuse the chemical test the State has a different case entirely.  Under this scenario it must prove that at the time you were operating the vehicle you were “appreciably impaired” to do so.  The law defines “appreciably” as “noticeably.”  Thus the prosecutor will introduce evidence of bad driving, odor of alcohol, poor coordination and so forth to establish that you were impaired.  In some, but not all, cases, this can be harder for the State to prove, thus increasing your chances to win at trial.  

            So, the most thoughtful answer I can give the potential DUI offender is this:  If you have NEVER had a DUI, and you haven’t had much too drink, you may want to consider providing a chemical test.  It is important to understand that this only applies to this one very limited situation, and that there is no guarantee whatsoever that events will play out as suggested above because policies and enforcement processes vary from place to place.  Similarly, if this is not your situation (i.e., you have a prior DUI and/or you are likely to have a blood alcohol significantly above the legal limit), it may be advisable to consider refusal.  Again, there are no guarantees and no certainties about the result.  In addition, be aware, the officer has the ability to request a Judge to issue a warrant to take your blood against your will.

             Finally, you should also be aware that you could refuse to take all Standardized Field Sobriety Tests as well.  These include the horizontal gaze nystagmus where they “check your eyes,” the walk and turn test, and the one leg stand test.  If you are going to refuse the chemical test you are likely best served refusing all tests.  If you are elderly, overweight, or have poor coordination, these tests will probably not help you in the long run.

Content author: Attorney David Gast