Monday, March 18, 2013

Should I refuse a breathalyzer or field sobriety test?

     You messed up.  You were driving a vehicle after “one or two drinks” (you’re not fooling anyone) and you’re over the legal limit. You know it.  Now you’re sitting on the shoulder during those terrifying moments between the initial traffic stop, and the dreaded “license and registration.”

       You’re wondering, “If the cops ask me to take a breathalyzer or a field sobriety test [Editor’s note: they will], should I comply, or refuse?”  You’re at a cross roads.  But unlike the trespassing hippie from the Frost poem that doesn’t have the benefit of exploring both paths, I’ve sketched the road map below:

The well trodden path
       In the first scenario, you abide by your parents’ directive that “honesty is always the best course of action.”  When the police officer asks “have you been drinking” you admit that you have.  You submit to the breathalyzer and the field sobriety tests and fail with flying colors.  You get booked for DUI:

  •  On the criminal side, your statements admitting your prior drinking are used as evidence against you.  The failed breathalyzer and field sobriety tests are also used as evidence against you.  You are found guilty of DUI and receive a sentence (up to a year for a first offense).

  • On the administrative side, the MVA suspends your license either 45 (if you blew between a .08 and a .15) or 90 (.15+) days.  The penalties double for subsequent offenses.

The road less traveled
       In the second scenario, you remember what the attorney from the Wire said to his clients: “shut up.”  You don’t admit anything to the police, and refuse the breathalyzer and the field sobriety test.  You get booked for DUI.

  •   On the criminal side, there are incriminating statements the State’s Attorney can offer against you.  There are no failed breathalyzer or field sobriety tests.  Your attorney has a fighting chance and wins you an acquittal.

  •  On the administrative side, the MVA suspends your license for 120 days.  The penalty increases to a year for subsequent offenses.

Which do I choose?
       The first option results in a shorter suspension of your license, but dramatically increases your chances of being found guilty of DUI (and even if you get Probation Before Judgment—it cannot be expunged from your record).  If you are on probation, a “guilty” disposition, even if it does not result in jail time, will constitute a violation of your probation, and could result in you “backing up” time.  If you’ve already been convicted of DUI or DWI, penalties for repeat offenders increase substantially.

       The second option results in a longer suspension of your license, but dramatically increases your chances of beating the charge of DUI (and charges that result in a “not guilty,” “nolle prosequi” or “stet” are eligible for expungement).

       Don’t take this post as a blessing to pull a Hasselhoff and get behind the seat of a car.  Drinking and driving is dangerous and illegal.  Don’t do it (you've noticed that both options result in you being booked and charged).  But if you do, remember your options.