It’s late, you’ve had a few drinks and you get pulled over driving. The highway patrol officer presents a Breathalyzer device. It is within your rights and might be in your best interest to refuse and opt for a blood test.
For various reasons, roadside breath tests are sometimes inaccurate. Among other factors, the Breathalyzer units can be calibrated incorrectly and the police officers that handle them are not always certified to do so. While it’s not well known and police generally don’t advertise it, no driver is required to take a breath test if asked.
Granted, refusing one can be grounds for being taken automatically into police custody and in some states can be presented to a jury. Still, certain drivers, including those with a DUI conviction already on their record, may have little to lose and plenty to gain by asserting this right Coronatest Drachten.
Consider a hypothetical example of a man we’ll call Bruce:
Bruce received a misdemeanor conviction for driving under the influence after taking a plea bargain on advice of a public defender; his Blood Alcohol Content (BAC) reading from a roadside Breathalyzer test had registered just over the legal limit in California of 0.08 percent.
Bruce had been prosecuted in one of the stricter counties in the San Francisco Bay Area. In the back of his mind, he always wondered if he had really been legally drunk the night of his first arrest. Thus, when the highway patrolmen approached his car with his Breathalyzer unit in hand, Bruce was ready this time around.
The officer asked for a copy of Bruce’s California Driver License and whether or not he had been drinking. Bruce replied that he had. Earlier, Bruce had consumed three Coronas and a shot of Tequila dinner with coworkers
At the time of the stop, Bruce was on his way home. He knew that at 6-feet tall and 180 pounds, his BAC would be close to the legal limit, and he didn’t want to risk an inaccurate reading leading to a second DUI conviction, which calls for stricter penalties, more jail time and the installation of an Ignition Interlock Device. This could also doom the appeal of his first conviction, which he had hired a private attorney to work on.
The police officer asked Bruce to step out of his car and undergo a Field Sobriety Test. Bruce refused, having heard from his San Jose DUI attorney that one in four innocent people may fail these tests, as some of the physical tasks demanded, such as walking heel-to-toe in a straight line or holding one’s arms out while standing still, can be difficult even for people who haven’t been drinking. The officer then asked Bruce if he would submit to a Breathalyzer test. Bruce refused this too, remembering what he’d heard from his lawyer about the inaccuracies of the devices.
He knew that refusing a Field Sobriety Test was grounds for an automatic arrest but that with a second DUI in question, he had nothing to lose and everything to gain. He knew his best bet to go home free that night was with a blood test at the police station.
The officer took Bruce into custody and drove to a local CHP office. Bruce’s attorney met him upon arrival at the police station. On advice of counsel, Bruce refused to undergo a police interrogation and agreed to have blood drawn for a test of his BAC. By now, it had been more than two hours since his last drink, and Bruce was reasonably certain his blood content would be under the legal limit. He also knew that if the reading was over the legal limit, his attorney might be able to argue that the blood vial showed fermentation, a defense often successfully used against a drunk driving charge.
As it turned out, the reading came back as 0.07 and Bruce was free to go home. Six months later, his attorney got his first DUI conviction thrown out on grounds of police misconduct and had his arrest expunged from his record.