DUI Breath Test Evidence

For over 25 years, drunk driving laws have been getting tougher and tougher. In virtually every state, the legislative branch ANNUALLY passes new DUI laws, or increases punishment for existing DUI laws. Why? It is due to the relentless pursuit of “prohibition” by MADD in our state legislatures each year. Once the legislative branch “acts” in response to the MADD pressure (now fully supported by the Federal Government through NHTSA) the trial courts and appellate courts fall in line and mete out severe DUI punishment, as directed by the legislature. Our jails are full to capacity, with many jail cells housing three to four times the number of prisoners they were designed to accommodate. In 1995, Georgia changed its DUI laws THREE times in less than 9 months! The trend is for the DUI laws to get more Draconian each year, and (in doing so) we lose more rights as citizens.

When a driver is suspected of DUI / DWI / OUI / OWI (or however your state has opted to abbreviate impaired driving), an officer is given the statutory “option” of asking that you submit to a DUI breath test (most common type test), or blood test, or urine test, or all three! The majority of states permit a person to REFUSE to submit to roadside testing. In most cases, the police officer will have asked you to first perform field sobriety tests, but these field evaluations ARE NOT mandatory. In others, (e.g., South Carolina), the officer suspecting alcohol as the impairing substance can only ask you to blow into a DUI breath test machine, barring a vehicular homicide or other extenuating circumstances.

In others, (e.g., California), the officer must ask for a DUI breath test, but verbally advise you that the California breath test does not provide a sample for later independent testing by you or your legal counsel, so you can OPT for a DUI blood test, if you so desire. Others offer you the chance to be tested “the easy way”, by blowing into a portable breath machine. If you try to resist, you can be PHYSICALLY wrestled to the ground, beaten, choked or even strapped to a table or gurney so that blood can be drawn from your body or urine can be extracted through a catheter inserted in your penis or urethra. Yes, we are talking about a garden-variety, misdemeanor DUI / DWI case in the United States of America, without serious bodily injury or death. Yes, we are talking about these unbelievable acts being LEGALLY sanctioned by some of our more pathetic appellate courts across America.

Implied Consent Laws and Types of Tests Offered

This option for officers to ask (or DEMAND in some jurisdictions, such as Nevada and Michigan) that you submit to DUI breath testing or DUI blood testing is called “DUI implied consent” or “informed consent”. This idea developed from a legal fiction whereby the government agreed that if a person opted to drive on the state’s roadways, and thereby obtained the “benefit” of this public expenditure of money, then the person also IMPLIEDLY agreed to submit to giving a sample to the police so that analysis for alcohol (and drugs) can be performed.

In the last decade, some state governments began to actually add this printed language to driver’s license application forms required of its licensed drivers, effectively forcing you to agree in writing to give breath, blood or urine at the request of a law enforcement officer who may suspect you of driving while impaired. In law school, we were taught that this is the classic “adhesion contract,” whereby one party (without any real bargaining position, was forced to sign an unfair agreement when no viable option—except to sign—exists.

DUI Penalties If You Refuse To Take The Sobriety Tests

In the states where police  legally cannot force a breath test or blood test from your body, the usual “penalty” for not taking a “chemical test” is most commonly loss of driver’s license (or loss of driving privileges in that state if your are licensed by another state at the time of your arrest). A few states have passed additional laws penalizing the driver who refuses to be tested with monetary penalties or other similar sanctions, but there are limits to what punishment can be exacted against a person who chooses NOT to incriminate himself/herself. The length of a license suspension/revocation depends on state law, and varies widely. Some states allow a “work” permit after a refusal; others do not. Check your state DUI laws by contacting one of our knowledgeable DUI lawyers now.