Before jumping into the substance of this article, I want to make clear that no one should operate a motor vehicle at any time while under the influence of alcohol or drugs (DWI). In this day and age, there are a multitude of ways for people who are under the influence to travel safely: i.e. Uber and Lyft. The cost of a ride from one of the services pales in comparison to the costs that will be incurred in defending such a matter in Municipal Court. Moreover, any one of our family members could be on the road at any time and become the victim of an accident caused by an impaired driver. Thus, nothing within this article should in any way be construed as providing guidance or legal advice to anyone who is attempting to get around the DWI statute.
Having stated the above, people who know that I am a DWI attorney ask me whether or not they should agree to submit to a breathalyzer test after getting pulled over and suspected of DWI. My first response is to tell them that they should never be in that situation due to the widely available and inexpensive options of Uber and Lyft. However, when pressed, I explain to them how a DWI case is defended which ultimately leads to the answer.
There are various steps involved in defending DWI cases. The first step involves the review and analysis of the traffic stop itself. Under the Fourth Amendment, an invalid traffic stop will ultimately require the suppression of all evidence obtained by a law enforcement officer related to the traffic stop. If the traffic stop is Constitutional, the next step is to evaluate the reason that the officer requested the suspect to step out of the vehicle to perform “field sobriety tests” for purposes of determining whether that suspect should be arrested for suspicion of DWI. Under the Fourth Amendment and relevant case law, the officer must have something called “articulable suspicion” for engaging in the field sobriety testing. The last step before an arrest would be to evaluate what occurs during the field sobriety testing. Typically, the evaluation of the above steps is based mostly on the officer’s body camera and dash camera. If the officer believes you have failed the field sobriety tests, you will be placed under arrest for suspicion of DWI and transported to the local Police Department for purposes of submitting to a breathalyzer test. This brings us to the question above.
It is at this point that many people will refuse to take the breathalyzer because they believe that, without a breathalyzer reading, it will be harder for the state to obtain a conviction. What they do not realize is that there is a statute stating that the refusal to take a breathalyzer test is its own traffic violation which results in significantly worse penalties than a conviction of DWI. Further, there are very limited legal defenses to the refusal statute. Thus, the suspect only will have the opportunity to rely upon the various defensive steps outlined in the prior paragraph. On the other hand, if there is a breathalyzer test performed, attorneys are trained to ensure that the breathalyzer test was performed properly and that the breathalyzer machine was properly calibrated, maintained and tested prior to use. Any such deviation from these standards could cause the breathalyzer results to be excluded from evidence giving the suspect a better shot at obtaining a dismissal or a less intrusive plea bargain.
Thus, by refusing to submit to the breathalyzer test, you are removing one potential defense that your attorney may have in obtaining a more favorable plea while, at the same time, almost guaranteeing a finding of guilt on the refusal statute which, as indicated above, carries a more severe penalty than DWI itself.
While I hope that no one reading this article would ever operate a vehicle while under the influence of alcohol or drugs, the failure to submit to a breathalyzer test makes an attorney’s ability to defend your case more difficult. Of course, each situation is different and you should contact an attorney who practices in this area should you have any issues or questions concerning the above.