Should You Take A Breathalyzer Or Chemical Test? Police Interaction, Part XVII
By Benjamin A. Tracy, Columbus Criminal Defense Lawyer and Civil Rights Attorney
This is the seventeenth part in a series of posts about what legal obligations you have when you interact with the police.
You have been arrested on suspicion of drunk driving (what, in Ohio, is called OVI). At the police station, an officer informs you that he wants you to take a breath test.
You might wonder whether you have to.
The BEST answer: You should make a decision based on the discussion below – taking into account how intoxicated you are and whether or not you have prior DUI offenses on your record within the last 20 years.
The WRONG reaction: Automatically refuse.
The WRONG reaction: Automatically consent.
Before we discuss the decision about what to do, it is important to note that you can be convicted of DUI if you refuse to take a chemical test, take and fail a chemical test, or even take and pass a chemical test. The statute allows you to be convicted if you are “under the influence” while operating a vehicle and whether or not you are “under the influence” can be decided without the need for chemical evidence. However, a chemical test is still very important.
Once you have been arrested upon suspicion of DUI and are facing the prospect of taking a chemical test of some kind (blood, breath, or urine) there are four possible choices and accompanying consequences. The four choices are: (1) You take the test and produce a result under the limit. In this case, the likelihood that you will be convicted of DUI decreases a great deal. (2) You take the test and produce a result that is slightly above the limit. If this happens, your chances of being convicted of DUI increase. (3) You take the test and produce a result far in excess of the limit. If this happens, your chances of being convicted of DUI increase and the penalties, if you are convicted, also increase. (4) You refuse the test. The refusal makes conviction for DUI much less likely. However, refusal will result in a temporary license suspension and, if you have a prior DUI conviction in the last 20 years, you will be charged with another type of DUI offense that carries increased penalties if you are convicted. Considering these four possible outcomes, the most appropriate strategy depends on your level of intoxication and prior DUI record.
Assuming you have no prior DUIs: If you are very drunk, you will likely produce a chemical test result that far exceeds the limit. If you do, the penalties are relatively severe. Thus, your best option is to refuse because refusal reduces your chances of being convicted of DUI and effectively removes the possibility that you could be found to have produced a “high” test result. Moreover, the penalties for a refusal are limited to a temporary driving suspension (during which time an attorney could obtain driving privileges for you so you could get to work and other necessary tasks).
Assuming you have no prior DUIs: If you are a bit drunk but worried you may test over the limit, you should refuse the test. The chances of being convicted of DUI will be lower with a refusal than with a failed test and the license suspension that accompanies a refusal to take a test is a relatively small price to pay for that advantage.
If, after honest reflection, you conclude you are sober or only minimally intoxicated, you may test under the limit. If you test under the limit, your chance of being convicted will drop considerably and you may altogether avoid being charged. So if, after honest reflection, you think you can pass, you should take the test.
If you have had two or more prior DUI or refusal offenses within 6 years and you try to refuse the test, “the officer may employ whatever reasonable means are necessary to ensure that [you] submit to a chemical test . . . .” Essentially, the officer will force you to submit to a test.
If you have prior DUI offenses on your record within the last 20 years but not two or more within the last 6 years, the strategies discussed above change. For a chart of applicable penalties depending on your prior record, please follow this link. Depending on your circumstances, refusal to take a test may still be a smart decision. But the penalty structure for someone who has prior DUI offenses on their record is very complicated and you should work with an attorney to formulate an advance strategy for dealing with the consequences if you have prior DUIs in case you get pulled-over again.
If you are under investigation, or have been arrested by any law enforcement agency, feel free to contact one of our experienced Criminal Defense Attorneys, for a free initial consultation about your legal rights and possible defenses.