Advice on refusing DUI field sobriety tests and knowing your rights

After you are pulled over under suspicion of driving under the influence (DUI) or driving while intoxicated (DWI), police officers typically request that you comply with a number of field sobriety tests and/or submit to a DUI breath test, or "Breathalyzer", to establish the probable cause (whether or not it’s probable that you are driving while intoxicated) necessary to arrest you.

While you may feel scared, nervous, and unsure whether you should submit to these initial requests, as they may directly result in your arrest and conviction, it is important to remember that these are, in fact, "requests". The following advice are things to keep in mind when making the decision to comply with or refuse DUI tests.


Do

Do hire an experienced DUI lawyer

So you properly refused to comply with field sobriety tests and any preliminary breath test, however, you are still arrested for DUI or DWI. Refusing a breath test does not magically prevent the officer from arresting you for DUI, it just requires him to establish probable cause in other ways; whether it be based on your erratic driving, your glassy eyes, the smell of alcohol, or empty beer cans in your car. Now what?

It is vital to hire experienced DUI lawyers to represent you going forward with your DUI or DWI charges and not to represent yourself. You should find skilled DUI lawyers who have extensive experience with DUI or DWI cases, are familiar with local procedures, and who will work hard to achieve the best result possible, whether it be through fighting the charges or negotiating a favorable guilty plea.

Do refuse to comply with any sort of preliminary breath test

Many people confuse the “informal” preliminary breath test with the “formal” chemical breath test that is administered after you have been arrested for DUI or DWI, which is discussed below. The preliminary breath test, typically known as the "Breathalyzer" test, is administered through a handheld device, typically on the side of the road, and is conducted prior to an actual DUI or DWI arrest.

In many states, you are not required to submit to roadside preliminary breath tests and you are fully within your rights to refuse the tests. While every state is different, it is generally advisable to refuse this test and you will not be punished for doing so. You may feel pressured to submit under the circumstances, but submitting to this test can only damage you and lead to your arrest.

Do remember to stay silent

While you may not have to submit to preliminary breath tests after being pulled over for a DUI or DWI, you still may instead try and talk your way out of it. You may believe that simply admitting that you had a beer or two will convince the officer that since you are honest, you should get a break. False. Any admission of alcohol consumption prior to driving will only harm you.

Do be knowledgeable about your rights

While it is never a good idea to drink and drive, it is always a good idea to be aware of your rights in case you do. In addition to your ability to refuse preliminary breath tests (in most states), you should be aware that doing so typically will not result in any negative consequences, no matter what the police tell you. The worst that could happen is that the officer can use the fact that you refused in an attempt to establish probable cause.


Don't

Do not assert your rights in a demeaning or rude manner

While you may technically be able to refuse to comply with preliminary breath tests, doing so rudely or in a demeaning way towards the officer is not in your best interest. Police officers are simply doing their job and upholding the law, and being teased or annoyed by a suspect who thinks they know the law better than they do is not good. Police have a substantial amount of discretion on who they arrest and what charges are filed. It is important to be polite and respectful in every aspect of a traffic stop and arrest.

Do not refuse chemical testing most of the time

As mentioned above, you are fully within your rights to refuse preliminary breath tests in the majority of states. The same technically goes for chemical tests, including blood test, urine analysis, or chemical breath tests requested after you were arrested for DUI or DWI. The difference is that refusing to chemical testing may result in serious consequences. It all depends on what state you are in.

Many states, including Pennsylvania, have "implied consent" laws, meaning that merely by driving in the state you have automatically agreed to submit to a chemical test if arrested for drunk driving. Typically, refusal to submit to a chemical test results in a substantial license suspension period and is considered completely separate from your actual DUI or DWI case. So, even if you are ultimately found not guilty of DUI or DWI, you will still have the license suspension to deal with.

The caveat to this, is that if you do not submit, there will not be test results to rely upon when charging you with DUI or DWI, but you still may end up being convicted without these results. This also guarantees a license suspension period. If you do submit, the results of the test may be admitted against you at trial, but would give your attorney the ability to question the methods and practices used.

Do not drink and drive

This goes without saying, but the best advice experienced DUI attorneys can give you in avoiding a DUI or DWI charge is to not drink and drive. Period. The severe penalties for drunk driving far outweighs the enjoyment of a few beers so just do yourself a favor and have a designated driver assigned when going out and make sure that you do not get behind the wheel after imbibing.

Do not believe you can “beat the test”

Many people have developed "methods" for beating a preliminary breath test, including keeping pennies in your mouth right beforehand, chewing gum or mints, sucking on a battery, or some sort of breathing pattern to fool the machine. These "methods" should be called "myths", as there is no scientific way to beat a preliminary breath test. As such, it is important for you not to buy into any of these tricks and attempt to pass the breath test if you have had even one drink.


Summary
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Majority of motorists are not fully aware of the legal provisions and implications surrounding DUIs or DWIs. Contrary to Miranda Rights where officers are mandated to inform an apprehended offender of his/her rights, police officers are not required to inform an individual pulled over for a suspected DUI or DWI offense of his/her rights to refuse a breath or chemical test.

Knowing what to do and what actions to avoid when you’re pulled over for a DUI or a DWI, can help make your case in court and avoid heavy penalties as well as prolonged damaging consequences.


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Alex Magid, EsquireDUI Lawyer

Alex Magid, Esquire, is an experienced Pennsylvania DUI lawyer at The Martin Law Firm, P.C., located in Blue Bell, PA. Attorney Magid provides legal representation in the areas of DUI and criminal defense as well as wills, trusts, and estates. H...

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