Breath/Blood Testing in Drunken Driving Cases

In driving while intoxicated or under the influence of alcohol or other intoxicants cases, such as drugs, law enforcement officials usually administer a series of tests to determine whether or not the driver was impaired while operating a vehicle. In addition to the administration of field sobriety testing (FST), most state drunk driving laws permit a breathalyzer or a blood test to be performed in order to measure the blood alcohol concentration (B.A.C.) level of a suspected drunk driver. The breathalyzer is performed when the suspected drunk driver blows into a mechanical machine, and the resulted reading will measure the amount of alcohol concentration that is found to be in the person’s breath or in the lungs.

On the other hand, a blood sample may be drawn when it is impossible for the police to obtain a breathalyzer reading, or depending upon the law of the state, an independent test, such as a blood sample, is performed at the request of the suspect.  However there are usually statutory guidelines that will govern the circumstances in which a blood sample can be withdrawn.

An Example: Defendant was pulled over by law enforcement officers for suspicioun of drunk driving. Although a breath test was administered and resulted in a reading of 0.16%, which is twice the legal limit in this jurisdiction, under a state law in which the defendant’s drunk driving arrest occurred, law enforcement officers are required to advise defendant that she may also undergo an independent test. The arresting officer has advised defendant of her legal right to an independent test including a blood sample. Defendant believes that the results of the breathalyzer are unreliable and therefore requests an independent blood sample.

Of course, there are other circumstances in which a drunk driving suspect may request an independent blood sample. Likewise, many state laws also permit blood samples to be taken without the express consent of the defendant. Nevertheless, if you encounter an arresting drunk driving situation, you should advise law enforcement officer that you wish to consult with a drunk driving defense attorney prior to submission. Many state laws will permit you to consult with a lawyer prior to submission, but only within a short period of time after an arrest.

What constitutes a refusal of a chemical test?

All states have enacted implied consent laws, which essentially means that in the event the police stop your vehicle because they have a reasonable belief that you are driving drunk, then the law requires you to submit to a chemical test that will measure your blood alcohol concentration (B.A.C.) level. These kinds of laws are called implied consent laws because from the government’s perspective, driving is a privilege and not a right. Therefore, as a condition to that privilege you and other drivers agree to submit to a chemical test at law enforcement request during a driving while intoxicated investigation.  If you refused to submit to taking a breathalyzer or provide a sample of your blood, then most states permit an administrative revocation or suspension of your driving privileges by the Department of Motor Vehicle (DMV).

But, after a review in many drunk driving cases in the United States, Criminal Defense attorneys have discovered that law enforcement officers have failed to properly inform a suspected drunk driver about their rights, or have misunderstood or do not possess sufficient knowledge of their state’s implied consent laws and their effects of the defendant’s decision of whether or not to submit to a test.

An Example: Defendant was stopped for driving while intoxicated by a state trooper. The trooper informed the defendant that if he failed to submit to the breathalyzer, his license would be suspended for a period of six months. However, under state law in which the alleged drunk driving event took place, the law requires a mandatory one-year license suspension when the suspect refuses to submit to a drunk driving test. Because the defendant believing that his licenses will only be suspended by the DMV for a six-month period, he refuses to take the test.

"I refuse to take the test."

In short, if the words, “I refuse to take the test” are uttered, it is affirmative that a refusal has taken place. However, a refusal is not always so clear cut and it is best to consult with an attorney if you have been charged with a drunk driving related offense and there is an issue that you refused to submit to a test.

If you or a loved one has recently been arrested and refused to submit to a breathalyzer or blood test, consult with a qualified drunk driving attorney today to discuss your legal rights and to learn what available legal defenses can be employed to challenge your case.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

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