Why You Should Refuse the Breathalyzer and FSTs

Among the most frequent questions that I am asked by my clients is whether they should have taken the police officer’s field sobriety and breathalyzer tests.

Since I became Lady DUI and chose to devote my career to defending drivers suspected of operating under the influence of alcohol, these are two questions that my clients seem to obsess about. Frankly, from my perspective as a DUI defense attorney, these questions are easily answered:

You MUST refuse any and all tests.

There is a simple reason behind this. The tests are designed for you to fail. The police use these tests because they will create evidence – powerful evidence – against you. Let me explain further.

Reasons to Refuse Testing

First, understand that from the time the police officer first observed your vehicle, the police officer is actively investigating and gathering evidence against you. This is what they are trained to do. The police officer pulled you over because he or she suspected that you were driving under the influence.

Maybe the police gained information from a 911 telephone call from another driver on the roadway. Or maybe the police officer saw you violate one of our state’s minor traffic laws (such as failure to stay in your lane of travel). The police officer only needs a reasonable suspicion that you were driving under the influence to stop your car.

What to Do Instead

When you see the patrol car’s blue lights flashing behind you, you should pull over to the roadside, stay inside your vehicle, roll down your window, and wait for the police officer. You should expect that the police officer will approach you.

Police officers follow their training, so their actions are predictable. First, the officer will ask you to produce your identification, vehicle registration, and insurance information. And that’s fine. You should give the officer these documents. However, if the police officer suspects that you were driving under the influence, while you are gathering up your documents, the police officer will also ask you if you had anything to drink.

STOP. Do not answer this question. It is a trap. This is an incriminating question. The police officer has just divided your attention between answering the question and grabbing your documents. The police officer expects that you might blurt out an answer without thinking. Don’t. Instead, pause and think it through before you say anything.

The best answer that you can give is to decline to answer at all. It will take some guts on your part, but you need to tell the police officer that you are not going to answer this question without your lawyer being present. Be firm. The police officer might persist in their questioning to see if you back down. But you shouldn’t.

Here’s why: If you answer the police officer’s question about drinking, you have placed yourself in an unwinnable “Catch-22” situation. Once you answer the question, you have already lost. If you admit that you drank any amount of alcohol prior to driving, you have probably given the police officer enough evidence to arrest you.

On the other hand, if you completely deny drinking, the police officer will later state that you were dishonest based upon his or her opinion and the other evidence (“smell of alcohol on breath”) that he or she gathered during their investigation. So, as you can see, any response other than to refuse to answer their question without counsel present, simply creates bad evidence that can be used against you in court.

Field Sobriety Tests

It’s exactly the same way with the field sobriety and the breathalyzer tests. You must refuse all of them. All these tests accomplish is to stack the deck against you.

The field sobriety tests are standardized tests created by the National Highway Traffic and Safety Administration aimed at detecting drivers with a blood alcohol content percentage above the legal limit. These tests require you to perform a series of physical activities. Your performance is open to interpretation by the investigating police officer. If you “fail” these field sobriety tests, the police officer will use your failure as evidence that you were driving under the influence.

When you think about it, the field sobriety tests are really unfair. You’ve probably never had to do them before. You may never even have heard of them. Now, facing penalty of arrest, you have to stand on the side of the road, with other cars passing by, and perform these tests to the police officer’s satisfaction. In contrast, the police officer knows these tests by memory, has studied them at the police academy, and has given them hundreds of times.

If you haven’t figured it out yet, you are being set up to fail.

Refusing Testing

The only sure way to “pass” these tests is to refuse to take them. There is no legal penalty for refusing to take the field sobriety tests. There is no penalty against your driver’s license for refusing to take the field sobriety tests. By not taking the tests, you are protecting yourself against evidence that could be used against you in court.

For the same reasons, you must also refuse the breathalyzer. By the time the police officer asks you if you want to take the breathalyzer, you are already under arrest. The breathalyzer test is given back at the police station. To be valid, the first breathalyzer test must be performed within two hours of operation. The legal intoxication limit is .08 BAC percentage. This is an extremely slim margin. Chances are, if you’ve had even a few drinks, you will be above the legal limit. So, just like with the field sobriety tests, by taking the breathalyzer test, you are generating more evidence against yourself.

The Prosecutor’s Case

Perhaps even more importantly, if you fail the breathalyzer test, you are giving the prosecutor an easy way to prosecute you. In DUI cases, the prosecutor (called “State’s Attorney” in Connecticut) has the option of prosecuting you two ways: (1) using your breathalyzer BAC results to show that you operated your vehicle above the legal limit; or (2) relying upon the officer’s testimony and other available evidence to prove that you drove while intoxicated.

Of these options, the BAC approach is the far easier case to prove. Basically, the prosecutor just needs to show that you were driving your car and present the breathalyzer test results to obtain a conviction. Defenses are very limited to these cases, and usually center on attacking the accuracy of the machine’s results.

In contrast, if there are no breathalyzer results because you refused the test, then the prosecutor must proceed with the officer’s testimony and other evidence gathered against you. This approach has many more available defenses, starting with attacking the police officer’s credibility and actions at the time of your arrest.

Think about it: If you refuse to answer questions about drinking, refuse to perform field sobriety tests, and refuse to perform breathalyzer testing, what evidence does the State have left to prove the case? Not very much. Possibly not even enough to justify your arrest in the first place. This is why most seasoned DUI defense lawyers say not to take any tests. It is a strategy that leaves the prosecutor with an uphill battle.

DMV Case

However, there is a catch: Remember that there are two parts to every DUI case. In addition to the court portion of your case, the DMV will also take administrative action against your driver’s license. After any DUI arrest, the DMV can suspend your license for forty-five (45) days and then after the suspension period, you will be required to use an Ignition Interlock Device (IID). You have the right to a hearing to contest the suspension of your driver’s license. If you lose this hearing, and if you refused to take the breathalyzer, you will have to use the IID for one year.

As you can see, despite the longer IID requirement, refusing to answer incriminating questions and refusing to perform any requested testing can go a long way towards setting up defenses for your DUI court case. And that is why I recommend that you refuse any and all tests.

Please keep in mind that every case is unique, and your case may require additional or different advice and counsel specific to your situation. If you need me, I am here to help.