The Breathalyzer Test: To Blow or Not to Blow (That is the Question)
December 13th, 2016
It's a scene that plays out across the country on any given night. After having a few too many drinks at the bar, you decide to drive home. Maybe it's not that far. Maybe it's a drive you've made before. But on this night, you're not so lucky.
You see the red and blue lights flashing in your rear-view mirror. You get that sinking feeling in the pit of your stomach. You think, "What am I being pulled over for? How many did I have? Can I pass the field sobriety tests? Am I going to be charged with a DUI/DWUI? Should I take the breathalyzer test? Do I need to call a criminal defense lawyer? What am I going to do?"
Charged with a DUI / DWUI in Wyoming or South Dakota?
If you've been charged with a DUI/DWUI in Wyoming or South Dakota, you probably have questions. Our team at Just Criminal Law is here to help. During your personalized case review and strategy session with our dedicated client care specialist, we'll talk about the details of your case. We may be able to challenge the evidence against you, or how it was obtained. One critical question is whether the police obtained evidence of your Blood Alcohol Content, or BAC.
Implied Consent and Blood Alcohol Content (BAC)
Under Wyoming's implied consent law, if a police officer reasonably believes you are driving a car while under the influence of alcohol or drugs, you are required to consent to a chemical test. However, the officer cannot force you to take a Breathalyzer test, and you may refuse to take the it. The officer is not required to tell you the consequences of refusing to take the test. But he or she is required to tell you that if you are under the influence, your license will be suspended for 90 days and you may need to install an ignition interlock in your car.
If you refuse to take a chemical test, your license will be suspended immediately. You will be given a temporary permit good for 30 days. Within 20 days after your arrest, you can request a hearing to challenge the suspension. If the judge finds that the officer had probable cause to arrest you, the court can suspend your license for the same amount of time as for a DUI conviction - between 90 days and one year. If you wish to challenge the suspension, you should hire an experienced Wyoming or South Dakota DUI/DWUI attorney for help.
A common question in DUI/DWUI cases is whether someone should submit to a breathalyzer or other chemical test. Some people believe that by refusing to submit to the test, the prosecution will not have a critical piece of evidence that could be used to secure a conviction. While this is true, understand that even without BAC evidence, you could still be found guilty of DUI/DWUI. The prosecution will usually have the police officer testify about the circumstances surrounding the arrest: Did the car or driver smell like alcohol? Were you driving erratically? How did you perform on the field sobriety tests?
In most cases, not taking the test simply isn't worth it. Of course, every case is unique and you should consult with an experienced Wyoming or South Dakota DUI/DWUI attorney to discuss your specific situation.
Blood Alcohol Content - BAC
Because most DUI/DWUI's are for driving under the influence of alcohol, the most common test to measure BAC is the breathalyzer. In Wyoming and South Dakota, if your BAC is above .08% you can be convicted of DUI/DWUI.
If an officer suspects you are under the influence of drugs or narcotics, you may be asked to submit to a blood or urine test. In addition to testing for narcotics or other drugs, blood or urine tests can be used to determine BAC, as well.
How can an experienced DUI/DWUI defense attorney help?
During your first meeting with our team of DUI experts, we'll talk about the details of your case. Your dedicated client care specialist will answer your questions, and talk about we may be able to challenge the evidence against you, or how it was obtained.
Did the police officer have probable cause?
To initiate a traffic stop or charge you with any other crime, the police need probable cause. The officer must reasonably believe that a crime was committed. The crime could be something minor, like not stopping at a stop sign or traffic light, driving with a burnt out tail-light, or because you were driving erratically.
When the officer asked to see your license and proof of insurance, he or she was also evaluating you for signs of intoxication. To charge you with DUI/DWUI, the police must be able to prove that the officer reasonably believed you were under the influence of alcohol or drugs.
Usually, the officer will testify that you were driving erratically or weaving, that your car smelled like alcohol or another drug, or that you appeared to be under the influence when you were talking to the police.
Did tests of your breath, blood, or urine comply with the Fourth Amendment?
The Fourth Amendment protects people accused of crimes from unreasonable searches and seizures. To be used to convict you of a DUI/DWUI, any evidence of your alleged intoxication must have been obtained in compliance with the requirements of the Fourth Amendment.
If you submitted to a test of your breath, blood, or urine, the prosecution, of course, will try to introduce this as evidence of your intoxication. However, our team will analyze how this evidence was obtained to make sure it complied with the Fourth Amendment. They might also be able to challenge the results of the chemical test itself. For example, the machine might not have been properly calibrated, or the sample may have been contaminated.
If the evidence of your alleged intoxication is not admissible, we still might be able to have the evidence excluded, which could result in a more favorable plea bargain, or having your case thrown out altogether.
Were the field sobriety tests conducted properly?
Police officers conduct a variety of tests designed to assess your sobriety. These include a nystagmus test, where the officer has you follow a pen or his or her finger as it moves across your field of vision. The officer was analyzing whether your eyes could smoothly follow the object. A good DUI/DWUI attorney should investigate whether the test was properly administered, and whether the officer was properly trained to give the test and analyze the results.
You might also have been asked to walk a straight line, recite the alphabet, or count backwards. Again, an experienced DUI/DWUI attorney can challenge whether these tests were properly administered, and whether the officer had the proper training to administer the test and analyze the results.
What to do if you're facing a DUI/DWUI charge?
The penalties for a DUI/DWUI conviction can be severe. Your driver's license and other professional credentials might be at stake. Your reputation might suffer. You face serious fines, and possible prison time.
If you are convicted of a first time DUI, the penalty is a fine of up to $750 and up to six months in jail. While this is certainly more than the penalty for refusing the chemical test, remember, refusing the chemical test does not guarantee that you will not be convicted. In fact, the prosecution will probably argue that you refused the BAC or other chemical test precisely because you knew you were intoxicated.
If you've been charged with DUI/DWUI in Wyoming or South Dakota, you probably have lots of questions. You also need to get started on your legal defense. You need a law firm that knows Wyoming and South Dakota DUI/DWUI laws. At Just Criminal Law, our dedicated and experienced team will protect you against the DUI/DWUI charges you are facing. In your personalized case review and strategy session, our team members will discuss your side of the story, answer your questions, and begin preparing your defense.
DISCLAIMER: The information contained in this article is offered for educational purposes only. This information is not offered as legal advice. A person accused of a crime should always consult with an attorney before making decisions that have legal consequences.
Categories: DUI / DWUI / Drunk Driving