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Refusing and Disputing Chemical Testing for DUI / DWI



If you are pulled over on suspicion of driving while intoxicated, there are some key points to be aware to best respond and protect yourself:

  • You must turn over your license and registration.
  • You should stay in the vehicle and not get out or open the door.
  • You do not have to answer questions about alcohol consumption.
  • You should tell the officer you are exercising your constitutional right to remain silent pursuant to the Fifth Amendment's protections against self-incrimination. If you ignore the officer's questions, you will escalate the situation. A simple and firm response that you will not answer pursuant to constitutional rights suffices.
  • You do not have to do field sobriety tests. Field sobriety tests are highly subjective, and many people can't recite the alphabet backward or walk a straight line when fully sober. These tests are far from scientific and reliable, and are not likely to show any predictable measure of intoxication.
  • You must submit to chemical testing. This testing can be combated on a scientific basis, but all U.S. states mandate that you submit by virtue of the privilege of driving under a license from that state. This is implied consent law. Because you obtain a driver's license from a state, you agree to submit to chemical testing of your breath, blood, or urine.
  • If you refuse to undergo chemical testing, you subject yourself to sanctions (suspended license, revoked license, fines, probation, and/or incarceration). In most situations, a driver's license is suspended automatically when a driver fails to comply with chemical testing. All states except Nevada revoke a driver's license for refusal of chemical tests.

Chemical Testing

The breathalyzer is one type of chemical testing used to determine blood alcohol content. Breath testing tends to be one of the least reliable methods for assessing intoxication level. Defense attorneys and other industry professionals question accuracy of tests and results using breathalyzers. The apparatus is unreliable in making a determination of intoxication level.

Blood testing, on the other hand, is dubbed one of the most accurate and fair chemical testing methods. Unfortunately, drivers are not always offered blood testing because it is more expensive, complex, and is not able to be done in the field.  Legal intoxication in most instances is established when a driver's blood alcohol content is .08 or higher. At that stage, a driver is deemed legally intoxicated and can be arrested for a DUI/DWI. Lower blood alcohol levels can still result in DUI/DWI arrests.

Refusing Chemical Testing

While a driver is required by law to submit chemical tests, in some situations, it may make sense from a defense perspective to refuse and accept the harsh penalty. If a driver knows he or she is severely impaired and will certainly fail the test, has caused significant property damage, or has injured him or herself or others, if not caused death, it may make more sense not to submit to the test and allow his or her license to be suspended or revoked and accept jail. The alternatives facing a driver with unfavorable chemical test results may be worse.

Disputing Test Results

Chemical tests are not indisputable. Positive chemical test results may not result in all instances with DUI/DWI convictions. Test results may be suppressed and not presented as adverse evidence in trial if the testing, training, instructions, or machinery is flawed and inaccurate. Defense counsel with DUI/DWI experience can best advise potential defendants of prudent approaches.

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