Can I Get a DUI if I Don’t Take the Breath Test?

If the State lacks any scientific test results of your blood, breath, or urine (either because you refused, the police did not perform such a test, or possibly due to a machine or lab malfunction), the State may still attempt to prove you were driving drunk by other means.

These “means” may include your poor performance on any voluntary field sobriety tests, and any physical evidence observed, detected, or seized by the police at the time of your arrest (examples: smell of alcohol, open container of alcohol, observing red, bloodshot eyes, hearing slurred speech).

These manifestations or observable symptoms can form the basis of “opinion” testimony from either the police or other witnesses that assert that you looked or acted somewhat “drunk.” Each year, thousands of citizens are convicted on such questionable “opinion” evidence.

In most states, if a chemical test indicates an alcohol level at or over the legal BAC limit, there is both a per se DUI-DWI and a separate common law (traditional) driving under the influence charge, where the State must prove that the presence of alcohol (or possibly drugs) in your system caused impairment.

When the State does not have a scientific test “number” or illegal substance (such as marijuana in the blood), the only type of DUI-DWI charge that can be prosecuted is a common law alcohol impairment offense or drug impairment offense based largely on smell of these substances, and possible admissions by you of use of these substances (or maybe both, if sufficient evidence supports this).

In different states, this other scientific evidence may or may not be available to your attorney as a part of the pre-trial discovery process. You may have to wait until a pre-trial hearing or the beginning of your trial to uncover exactly what this other evidence will be. Such procedures hamper your DUI attorney’s ability to prepare for your trial.

Your attorney will likely need to anticipate the State’s evidence and subpoena your own witnesses to help prepare your defense if he or she has found issues with the State’s scientific testing. Remember, it is still the State’s burden to prove beyond a reasonable doubt each and every element of any charge against you.

The best DUI-DWI attorneys know the names and expert training background of an array of expert witnesses, and the location of manuals or regulations that can provide ammunition to challenge the State’s scientific evidence.

Such witnesses or evidence will cost money to bring to court, but will be essential to your case. These witnesses charge for their time in preparing for court, reviewing your case file and being available to provide expert opinion evidence about some disputed aspect of your case.