Should I refuse to blow into a DUI breathalyzer?

 

The State has two ways of proving a DUI charge.  The first and most common way is to prove that a defendant was driving a vehicle while his blood, breath or urine contained .08 alcohol or higher.  The reason this is the most common way of proving a DUI is because it is the easiest.  The State doesn’t have to demonstrate that you were not fit to drive, or that you were swerving all over the road, or that you cannot walk a straight line, all they have to prove is that you were driving and that you had a blood alcohol level of .08 or higher.  The second way of proving a DUI is by proving that you are too intoxicated to drive properly.  This takes a little more effort on the State’s part.  They have to show that you are stumbling over your words, that you cannot walk a straight line, that you cannot stand on one foot, that you have Horizontal Gaze Nastagmus in both eyes.  And they also have to prove that none of this is due to other factors, such as physical injuries or medical issues.

So what if you refuse to submit to the alcohol test?  You cannot be forced to submit to a breath test.  However, if you refuse to blow you can be charged with a refusal which will result in your license being suspended for 365 days.  You will not be able to drive for the entire 365 days, not even for work, school or doctor’s appointments.  You will have no privileges whatsoever.  The reason the State can do this is because when you get your license, you consent to submitting to these tests.  The consequence for failing to submit is revocation of your privilege to drive.  On the other hand, without a positive test result the State will be forced to proving the DUI in the second, more difficult, way.

Another thing to consider is that in Idaho, especially in Boise, they have been forcing individuals to submit to a blood draw.  Historically the court’s have upheld these forced blood draws, holding that a blood draw without a warrant is justified under the ‘exigent circumstances’ exception to the warrant requirement.  However, just recently the United States Supreme Court held in a case called Missouri v. McNeely that the exigent circumstances exception to the warrant requirement will no longer be a justification for a warrantless forced blood draw.  How this effects forced blood draws in Idaho is yet to be worked out, but there is no doubt that there will be many battles fought over this issue.

If the State does perform a forced blood draw, they cannot charge you with a refusal.  So your driver’s license will not be suspended for 365 days for your previous refusal of the breathalyzer.  If the State does perform a forced blood draw after you have chosen to refuse a breathalyzer test, you will want to also communicate your refusal of the blood draw so that there is no ambiguity about your decision to not consent to the blood draw.  This will preserve the issue to be challenged in court.

Now just because you refuse to submit to the State’s tests does not mean that they will not be able to prove their DUI case.  In many instances the State may have a more difficult time of proving their case without the test results, but they can still use other factors to try and prove a DUI case.  Also if you are convicted of a DUI, and you refused to participate in the breathalyzer test, the State can then try to use this as an aggravating factor in the case, and also as evidence that you are not taking responsibility and accountability, which can result in a more harsh sentence.  So consider that also when you are making your decision whether to submit to the breathalyzer or not.

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Boise, Idaho Criminal Defense Attorney

Craig Atkinson is the lead attorney at Atkinson Law Office,
Boise DUI and Criminal Attorneys. It is located at 1087 W River St #290, Boise, ID 83702. You can call him anytime at 208.571.0627.

Ask Craig to review your case.

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