What to Do if a Police Officer Asks You to Take a Breath Test in a DUI Case

Getting stopped by a police officer for DUI is never a circumstance that a person plans for. The presence of a police officer can certainly be very intimidating and a person is never quite sure how to handle the situation. Certainly, after the fact a person is able to reach out to a DUI lawyer and have him or her give guidance in the process. But what about the decisions that one must make on the side of the road? Should a person agree to provide a breath sample?

Implied Consent

When a person is issued a license to drive in most states, he or she implicitly grants permission for a law enforcement officer to obtain a sample of his or her breath in order to determine his or her level of intoxication and blood/breath alcohol content. This is the case under the law of most states as well as federal law. The practical effect of this is that the government can punish a person for the refusal to provide a breath sample. The punishment usually involves a lengthy suspension of a person’s license to drive, and in some states, an additional steep civil penalty or fine. This downside must be balanced against potentially highly criminal evidence being provided by way of a breath sample. The DUI lawyers at our firm have often seen breath alcohol tests as high as .35. As one can guess, if a person’s breath alcohol level is going to be extremely high, it may be better to simply refuse the test. If a person realistically believes the test can be passed, it is better to provide a sample.

A Warrant for a Blood Test

If a driver refuses to provide a breath sample at the request of a police officer, it may be the case that the officer will seek a warrant from a judge to draw a blood sample for testing. In such circumstances, a person cannot lawfully refuse or prohibit the officer from drawing the sample. The sample will be taken by a blood tech, phlebotomist or sometimes an EMT. A warrant for a blood test is not the preferred way of obtaining a sample by law enforcement. This is because obtaining a warrant often takes more paperwork and delay in a case.

Different Types of Breath Alcohol Tests

Drivers are often surprised that there are two different breath alcohol tests that can be given to a suspected impaired driver. There is the portable breath test (or PBT) and the stationary test that is given once a person is arrested and brought to the police station. The PBT is typically not admissible in court because it does not include scientifically reliable protocols and technology to make it sufficiently accurate. The test is usually given by a police officer to assist in making a rough estimate about a person’s breath alcohol content. In most states a person has a right to refuse a PBT, although the fact of the refusal may potentially be considered in court. The second type of test, i.e. the stationary instrument, is done at the police station itself as opposed to on the side of the road. This test is usually obligatory, and the refusal of which is generally grounds for the suspension of one’s license to drive. A breath test in a stationary device is usually preceded by an “observation period” where the officer insures that an individual does not put anything in his or her mouth for 15 minutes prior to the test. During this period at the police station, and officer will often allow the person to make a phone call. This is usually a good opportunity for a person to reach out to a DUI attorney if that is possible. Contact Spokane DUI lawyer Steve Graham for more information on breath tests.

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