There is a ton of miscommunication and misunderstanding out there for citizens in regard to what someone should do when they are arrested for DUI.
Everyone seems to get bits and pieces of information from family, friends, the media, and maybe even a DUI attorney, but I’ve found that oftentimes people just flat out don’t understand the difference between the tests that are offered and which tests someone has the right to refuse, and which tests they should refuse.
I’m going to break down the tests that are offered into three types: 1) The “FST’s,” which stands for the Field Sobriety Tests, 2) the “PBT,” which stands for the Portable Breath Test, and 3) the “official” breath test at the station. Understanding the difference between these types of tests, what to do when offered them, and how they can affect your DUI case, is extremely important.
What To Do About the Field Sobriety Tests
When you are pulled over, and the officer begins his DUI investigation, the first tests that he or she is going to ask you to complete are the “FST’s.” These are the tests that you’ve seen or heard about on TV, online, and maybe even on the side of the road. They are the tests where individuals are asked to walk a straight line, stand on one leg, follow an officer’s pen with their eyes, etc. They are physical tests, and they exist to give the officer probable cause to arrest you for DUI.
If you perform poorly on them, which just about everyone does, that will bolster the officer’s case to say that you were affected by drugs and/or alcohol. An officer is supposed to let you know that these tests are voluntary, but they often do so in a sneaky way that is hard to determine that in the heat of the moment. People often feel like they have to cooperate with the officer, and therefore they perform these tests, even when they shouldn’t. These tests SHOULD NOT be performed by anyone when they are being investigated for DUI.
What To Do About The Portable Breath Test
The second test, which is actually technically the last step of the FST’s, is the Portable Breath Test or “PBT.” This test is simply a test of your breath to determine your blood alcohol level, where the officer asks you to blow into a handheld machine that he keeps with him in his car.
This is where a lot of the confusion lies with the public. This breath test that the officer asks you to submit to on the side of the road is again voluntary, and if you refuse it, your license will not be suspended and it will essentially not be used against you in any meaningful way.
Again, the officer is trying to obtain your BAC through the PBT because they want to bolster his or her evidence showing that you are too impaired to drive. Yes, it’s true that if you refuse both the FST’s and the PBT that the officer still can and likely will arrest you…
However, later, when you speak to an attorney, we will be able to attack this legal issue and argue that the officer did not have probable cause to arrest you, and your case can be greatly benefited, and could even be dismissed. Again, DO NOT provide the officer with this information. Refuse to take the PBT test if it’s offered to you.
What to Do About the Official Breath Test at a Police Station or Jail
The final test, which is the actual breath test at the police station or jail, is the one that really matters. This is the one that is going to be used in court and will be your official blood alcohol level as far as your case is concerned. Again, people get confused about whether they should refuse this test, and people oftentimes do, when they shouldn’t.
Unlike the FST’s and PBT, there is not a hard and fast rule on whether or not you should refuse this test. In the high majority of instances, it is in the best interests of the individual to take this test.
Not taking the test is considered a “refusal” and that can mean that your license will be administratively suspended by the Department of Licensing for a minimum of one year. This hearing can still be contested with the help of an attorney, so the suspension is not a guarantee, but it’s a very real possibility. If you are anywhere near the legal limit, it’s not a good idea to risk getting your license suspended for this long just because you don’t want to provide your breath test to the officer.
The other detriment is that even when you refuse the breath test, officers nowadays are then applying for a search warrant for your blood, and are taking these individuals who refuse the breath test to the hospital to have their blood drawn. What this means is that this could be a double negative, the DOL could count this as a refusal, and the State could still obtain your BAC results through your blood, and therefore you’re in a much worse position than if you had just provided the breath sample.
The main situation where refusing can help your case is if there are good legal arguments surrounding your reasons for refusing (such as objective confusion over the options), and the officer decides not to seek a search warrant for your blood. This means that the State could potentially be left without a BAC result to submit at trial, which is a big piece of evidence.
The Step To Always Take When Investigated for a DUI
However, one should always be careful when refusing this test, and someone who is arrested for DUI should ALWAYS ask to speak to an attorney prior to deciding whether to submit to this breath sample or not. Many people don’t realize that they have this right to talk to an attorney, but if you request one at the station, prior to submitting to the breath test, the officer should make an effort to connect you with either a public defender or private counsel of your choice.
Understanding these three tests and their implications is the most important piece of knowledge that a layperson can have when it comes to a DUI arrest. At Russell & Hill, we’re happy to discuss your DUI case from the moment you get arrested until the case is resolved so that we can try to use legal issues like this to your advantage.