During late night hours, DUI task force officers are out in force conducting roadblocks and stopping drivers for any conceivable reason they can come up with in an attempt to arrest drunk drivers. A question that is frequently asked is, “Should I refuse the test if stopped for DUI?” While there is no simple yes or no answer, there are pros and cons to refusing the State Administered Chemical Test.
THE DOWNSIDE OF REFUSING
First of all, let’s address the downside of refusing to submit to the State Administered Chemical Test. Once an arrest is made, the officer is REQUIRED to advise the driver of his/her ‘Implied Consent Rights”. You can read my article “Implied Consent versus Miranda Rights” for more information on this issue. Within the “implied consent” notice, the driver is advised that failure to submit to the State Administered Chemical Test will result in a suspension of his/her license or privilege to drive in the State of Georgia for one year (the loss of privilege to drive in the State of Georgia is addressed to individuals licensed in a State other than Georgia). Thus, there is the risk of a license suspension for a full year upon a refusal to submit to the test. At the time of the arrest (upon a refusal), if the Officer is pursuing an administrative suspension of the driver’s license, he/she is required to issue a copy of a form known as form DPS-1205 to the driver. At the bottom of the form, the driver is placed on notice that, unless he/she files a hearing request within ten (10) business days from the date of the arrest, his/her driver’s license will be administratively suspended thirty (30) days from the date of the arrest. And of course, the driver can be assured that, upon a refusal to submit to the State Administered Test, there is a significant probability that he/she will be arrested. Thus, the probability of a license suspension and an arrest are the likely results (downside) of a refusal.
THE PROS (UPSIDE) OF A REFUSAL When reaching a decision as to whether or not to refuse one should first consider the reason for the stop. The reason for the stop lays the initial foundation for the probable cause for the DUI arrest. Remember, initially, the DUI arrest is based on the officer’s allegations that the driver was driving under the influence of alcohol (or drugs) “to the extent it was less safe to do so”. Accordingly, consider the reason for the stop. Was the driver stopped for speeding, no seat belt, or no turn signal? If any of these are the reasons for the stop, without more evidence, it would be very difficult for the State to obtain a conviction for driving under the influence. On the other hand, if the driver is weaving all over the road, involved in an accident or fast asleep at the traffic light, the defense will have to be prepared to present a plausible alternative to DUI as the cause of the driver’s behavior.
So, let’s first assume that the driver is stopped for speeding, no turn signal, no seatbelt, or stopped at a roadblock. At this point, there is absolutely no evidence of driving under the influence to the extent it is less safe to do so. Thus, the officer will launch into his/her attempt to build enough evidence to make an arrest. The interrogation begins with questions such as, “Where are you coming from tonight?” or “Have you had anything to drink?” And, for the purposes of this posting, let’s assume the driver has, in fact, been drinking. If the driver admits to having consumed any alcohol, the collection of evidence begins to strengthen the State’s case.
Because the driver is not yet “in custody”, a Miranda Warning is not required at this stage of the investigation. Thus, anything the driver says can and will be used against him/her. Also, remember that the DUI task force vehicle is equipped (in many jurisdictions) with a continuously recording video camera, and the officer has a microphone attached to the front of the uniform to record the conversation. With that said, assuming that the reason for the stop was speeding, no turn signal, no seatbelt, or a roadblock, if the driver refuses to admit drinking, refuses to perform any field sobriety tests (evaluations), refuses to blow into the handheld alcosensor, and refuses to submit to the State Administered Chemical Test, then the evidence that State actually has against that driver may be limited to speeding, failure to use a turn signal, etc., in addition to the Officer’s allegations of an order of an alcoholic beverage on the driver’s breath, bloodshot, watery eyes, etc… not enough to convince a jury beyond a reasonable doubt that the driver was driving under the influence of alcohol to the extent it was less safe to do so.
Additionally, the officer will have difficulty alleging that the driver’s speech was slurred or thick-tongued if the driver minimizes any conversation with the officer. The driver should immediately present a valid driver’s license and proof of insurance and minimize any other conversation, if it is his/her intent to refuse. But, what if the driver was stopped, instead, for failure to maintain lane? The defense attorney in representation of the case files discovery motions requiring the State to produce all of the evidence it has against the driver, including any reports, statements, and VIDEO. At the trial of the case (or motion to suppress), the defense attorney will be able to attack what is actually seen in the video, in addition to the probable cause for the stop, as well as, the officer’s failure to properly conduct the investigation. Things become significantly more complicated if there is an accident, especially with significant property damages or bodily injury.
The Supreme Court has seen fit to permit officers to engage in search and seizure of the driver’s blood by force if necessary. Yes, in 2013, there are growing reports of drivers being forcibly held down by 3-4 individuals and a blood sample being drawn from the driver’s arm against his/her will. And a serious injury by vehicle while DUI will bump the charge from a misdemeanor to a felony, and if convicted, results in a three-year license suspension. Accordingly, the upside to refusing is the driver is limiting the evidence the State can use in an attempt to obtain a conviction. One mistake frequently made by drivers is the driver will perform the field sobriety tests (evaluations) and then refuse the breath test.
Well, by performing field sobriety tests, the driver may be giving harmful evidence against him/herself. It’s a known fact that the average citizen does not practice standing on one leg, walking heel-to-toe, etc. Accordingly, the officer looks for clues during field sobriety evaluations and will indicate clues to support an arrest for driving while impaired if the driver lifts his arms for balance, fails to touch heel-to-toe while walking the line, etc. And, of course, the officer always has the driver perform these tests in front of the patrol vehicle so it can be captured on video (evidence for the State to use). Now, let’s assume that the driver refuses everything (no admission of drinking, no field sobriety tests, no alcosensor, no breath test), what can be done to protect his/her driving privileges?
Assuming that the driver files the hearing request within ten (10) business days from the date of the arrest and pays the required $150.00 application fee, the administrative suspension will be “stayed” pending a ruling by an Administrate Law Judge. At the administrative hearing, although the driver faces a one-year suspension upon a refusal to submit to the State Administered Chemical test, an experienced attorney may be able to negotiate a withdrawal of the DPS-1205 at the administrative (ALS) hearing. And, if successful in this negotiation, the driver will be in the same position as if he/she had, in fact, submitted to the chemical test (i.e., he/she may be entitled to a “limited permit” to drive upon a conviction of DUI). Hence, if the DPS-1205 is withdrawn at the administrative hearing, and based on lack of evidence, the attorney is able to negotiate a reduction of the DUI charge down to “reckless driving”, the result will be no license suspension and no DUI conviction.
Finally, each case stands on its own merits. An outcome of a case cannot be guaranteed. No attorney-client relationship has been created as a result of this article, and no advice is given, express or implied, as to whether you should or should not refuse to submit to the State Administered Chemical Test.
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