Should I Refuse the Breathalyzer Test?

P. Adam Militello, Esq.

The best choice is to not drink and drive – ever – but if you find yourself being pulled over by police after consuming any amount of alcohol, you have some decisions to make.

No matter what else happens, politely decline to perform the so-called "Field Sobriety Tests."

Standardized Field Sobriety Tests include the One Leg Stand, Walk & Turn, and Horizontal Gaze Nystagmus. These tests are shockingly inaccurate. Do not take these tests, even if you are sober, because you will likely fail, and you will be prosecuted based on those tests you failed while you were sober.

The are called "Standardized" Field Sobriety Tests becacause there have been validation studies conducted (although those studies certainbly don't show that they are accurate), and because police across the country are trained to use the tests the same way.

There are also non-standard tests. These include the so-called Alphabet Test, Counting Test, Modified Romberg Test, Vertical Gaze Nystagmus Test, and Finger-to-Nose Test. Sober people fail all these tests regularly. Courts sometimes admit their results as evidence. Do not take them.

When to Refuse the Breath Test:

Refusing to take the Breathalyzer/Datamaster test will result in the DMV attempting to revoke your license for at least a year. You have to make a decision between driving privileges and a DWI conviction. If you have had more than two drinks and are not sure if you are "okay to take the test," you probably are not okay. That being said, if you are intoxicated, there is no single answer about whether to take the test. Refusing it may lead to a better chance of winning at trial, but it also leads to a potentially longer license revocation.

When you should take the Breathalyzer Test:

If you have consumed no more than 2 bottled beers over the prior 4 - 5 hours, and if you have had nothing to drink within the last 2 hours, you should probably take the "Breathalyzer" chemical test. It should show that your BAC was below a .08%, and taking the test could save your driving privileges.

Again, even if you choose to take the test, you should not take the field sobriety tests. I have seen sober attorneys attempt to take those tests and fail. Field sobriety tests are designed to be failed, so you should never take them.

Not sure what to do? Contact P. Adam Militello, Esq. by calling 24/7: (585) 485-0025

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