Armchair lawyers will tell their friends never to blow into the breathalyzer when arrested on suspicion of a DUI. But that’s not always the best advice.
Actual impairment vs. Per Se DUI
Even if you refuse to blow, the State can proceed on an ‘actual impairment’ theory. This means that they can try to prove the DUI case by presenting other evidence of intoxication, such as a driving pattern, blood shot eyes, smell of alcohol, failed field sobriety tests, impaired memory, slurred speech, etc. The breath alcohol test allows the State to proceed on a ‘per se DUI’ theory, where they only have to prove that you were in ‘actual physical control’ of the vehicle, and that you were over the legal limit.
365-day License Suspension
One of the major consequences of refusing to provide a valid breath sample is a mandatory 365-day license suspension. The reasoning behind allowing the State to suspend your license when you refuse to provide a breath sample is what is known as “Implied Consent”. Implied consent basically means that when you get your driver’s license, you are consenting to the rules of the road, and one of those rules is that if you are stopped by law enforcement on suspension of driving under the influence, then you must comply with tests that the officer will conduct to make sure you are safe to drive. Bear in mind the 365-day license suspension is a consequence separate from any consequence you might get for being charged with the crime of Driving Under the Influence. It is a separate offense to refuse to cooperate with a breath test. What this mean is, even if you were stone cold sober when you were arrested, you still must comply with a breath test. Being innocent of driving under the influence does not absolve you of the responsibility to comply with the rules of the road. Even if you beat the DUI charge, you will still be stuck with a 365-day license suspension. And that is an absolute suspension, meaning you cannot drive for any reason, even work. Whereas if you were convicted of a DUI charge, your license would be suspended for 180 days, and only the first 30 days would be absolute. You could apply for a work permit after the first 30 days of the suspension.
Forced Blood Draw
Another reason not to refuse the breath alcohol test is because law enforcement is probably going to get your blood anyway. The State does not need your consent to draw your blood, they simply need a warrant from a judge. Most cities have a process in place for waking up a judge at 2:00 a.m. to read probable cause to the judge and get a warrant. If that judge ends up being the judge on your case, you can imagine how upset he (or she) is going to be that you forced him to wake up at 2:00 a.m. The law on whether they can charge you for a refusal after they have drawn your blood is unsettled, but there is a chance that they may get your blood, and charge you with refusal to provide a breath sample. So they will get their cake and eat it too, while you suffer twice.
Proof of Innocense
In Idaho, one reason you may not want to refuse a breathalyzer is because if you feel like you are under the legal limit, blowing under a .08 will normally get you out of a DUI charge. Unless the officer has reason to suspect drug use, he must let you go if you blow under a .08. If you refuse to blow and would have blown under a .08 had you blown, then the State could proceed on an ‘actual impairment’ theory, instead of a ‘per se DUI’ theory. So if you only had one beer, then it may make sense to take the test in hopes that you will not get arrested that night.
Refuse for Felony
There are times where it may make sense to refuse a breathalyzer. If you were in an accident and someone was injured, a DUI charge would be charged as a felony. When you are facing a felony, it makes sense to preserve whatever defense you may have to the DUI, especially since a driver’s license suspension on a felony DUI can be up to 5 years. A 365-day license suspension begins to not look so bad when you are facing a felony. You can also get a felony DUI if you have had two prior DUIs in the last ten years, or one prior excessive DUI within 5 years. If you are facing these sorts of consequences, then it may make sense to exercise right to remain silent, including refusing to consent to a breathalyzer. They may still get your blood, but there is always the small chance that they will not.
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.