Beating a DUI Charge after Refusing a Breathalyzer Test

Written by James Hirby | Fact checked by The Law Dictionary staff |  

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As most people, experts and those with experience related, the refusal to take a breathalyzer test is an automatic loss of license in most, if not all, states in the United States.  In these states there is a requirement that you knowingly, or unknowingly, accept when you sign an application for a license.  This requirement is known as the “Implied Consent” statement.  In this statement each driver applicant states that he or she will take a breathalyzer test if legally stopped for suspicion of driving under the influence of alcohol, drugs, or whatever else there might be ingestible and debilitating.  The statement also specifies that the applicant acknowledges the fact that refusal of this testing, breathalyzer or chemical, carries the automatic penalty of loss of license and likely points on one’s driver’s license.  The length of penalty and number of points differs in many states, but typically the loss of license is for one year and the number of points is usually two.  Another aspect to understand is that this refusal is also stated on one’s driver’s record for a state mandated number of years, usually five.  … and, the difficulties are just beginning.

Looking at a situation as described by an individual and as the arresting officer likely wrote it up, there are a number of things here that are rather telling evidence against the individual.  Open beer bottles with beer still in the bottles in the cab of the vehicle.  Told the officer that he had drank a few beers some hours earlier with friends.  The individual’s statement to the arresting officer that he apparently fell asleep behind the wheel and hit a sign that punctured the gas tank is rather telling.  No explosion, thankfully, and plugged by the fire department.  Then, counting for the officer but not out loud and stating that he did not know that he had to count out loud.   Requesting a lawyer is present for the taking of the breathalyzer test, and the officer marking that the accused refused the testing.  Falling asleep behind the wheel – minimally driving to endanger.  Admitting having beers and having open bottles in the cab – this is circumstantial, yet strong evidence.  Going off the road and causing damage – this is possibly reckless endangerment, according to some experts.  Other experts said that the silent counting, the testing refusal, the seemingly somewhat belligerent, uncooperative stance all work against the accused.

The best opportunity for avoiding a DUI conviction in the above situation appears to be a jury trial.  The testing refusal and license loss is under the DMV, a civil matter.  This can only be reversed if the arresting officer had no reason to apply the test.  Reasonable people can certainly agree that the officer had many reasons to apply the test.  As in any trial, the state attorney has the obligation of proving beyond doubt that the accused is guilty of driving under the influence and should be convicted.   Many experts agree that most DUI cases have only circumstantial evidence collected by the arresting officer at the scene to use at such a trial.  After that, it is up to the jury to decide.

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