As a Criminal Defense attorney one of the most frequently asked questions is whether or not you should submit to a police request to blow into a breathalyzer machine if you are pulled over on suspicion of a DUI.
The fact is, there is no right or wrong answer. The decision of weather or not to blow into a breathalyzer machine has both advantages and disadvantages. Submitting to any field sobriety test to avoid DUI charges is something to be taken seriously.
To Blow
If you decide to submit and blow into a breathalyzer machine and the result is below the .08 legal limit there is a greater chance for an attorney to reduce the DUI to a lesser offense (such as a Wet Reckless) or maybe even have the charges dismissed altogether.
Another advantage to submitting to a breathalyzer test to check for a possible DUI is that if the result comes back at one reading and on the second reading the result comes back lower and below the .08, there is good legal argument to be made that the person submitting to the test was in fact “peaking” at the time of the first test. This gives a Criminal Defense attorney a good basis on which to make a legal argument for the invalidity of the first test and the rationality for only using the second reading.
On the down side, if you submit to a breathalyzer and the results come back over the legal limit, the prosecutor will have all the evidence needed to convict you on DUI charges. It will then leave less options for a Criminal Defense attorney to defend against those DUI charges.
Not to Blow
Believe it or not, you are allowed to refuse to take a breathalyzer when asked by police on suspicion of a possible DUI.
You have a constitutional right against self-incrimination. This means you can elect to refuse to submit to a breathalyzer as it may be used as evidence against you.
As such, if you have been drinking and feel under the influence, you may refuse, not only a breathalyzer but any field sobriety tests the police may wish to conduct. By doing so you are undoubtedly depriving the state of the most vital piece of evidence they can use against you. It then becomes a much more daunting task for the state to find you guilty on DUI charges. As such, there is a much greater opportunity for your DUI defense attorney to craft a stronger legal argument and defense for dismissal or a reduced charge on your behalf.
Your only goal when faced with a DUI arrest is to ensure that you’re not incriminating yourself unnecessarily and inadvertently strengthening the state’s case against you. Whatever other consequences you might face in not blowing into a breathalyzer machine, they are almost always more palatable than a DUI conviction, which is a lot more possible with a breathalyzer reading as evidence.
The disadvantages in not complying with a police request to submit to a breathalyzer are different in each case and for each person. In California, if you refuse to submit to a breathalyzer one of the possible consequences if that the DMV, as an administrative action (not under the criminal code), will suspend you driving privileges for a 12 month period. This means that weather or not you are found guilt of a DUI as a criminal charge, DMV will suspend you license for a 12-month period merely for refusing to submit to a breathalyzer.
Avoiding A DUI Conviction
The only sure way to avoid a DUI charges and a conviction is to not drink and drive.
However, if you are arrested for a DUI and want to ensure that you’re not incriminating yourself unnecessarily and inadvertently strengthening the state’s case against you, it is best not to submit to a breathalyzer. The consequences you might face by not blowing into the breathalyzer machine are usually easier to handle and are always more palatable than a DUI conviction.
If you are ever in this situation and whatever choice you determine is best for you, always be courteous to police, and to ensure the best defense for yourself, make sure you obtain the services of a Criminal Defense attorney that has handled DUI cases in your state.
Whether you submit to a breathalyzer or not, you should retain a good DUI attorney that can help defend you and avoid a DUI conviction, have the DUI charges dismissed altogether or have them dropped to a lesser offense such as a “wet reckless”.
Disclaimer: This is a “blog” and not intended as legal advice towards any one person, individual or group. This “blog” is not intended as to be used as legal advice. Each individual’s situation is different and the laws of each state are different. Although every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
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