“I have your back”
There are multiple reasons why you would decline to take a breathalyzer test during a traffic stop. First, let me distinguish between the two types of breath tests. There are:
- Breath alcohol tests (also known as pre-screen tests or alco-sensor tests); and
- Chemical breath tests (also known as Breathalyzers, Datamasters, Draegers, and Intoxalyzers).
The breath alcohol test is the test that you might be given while sitting in your car, or right where you were pulled over. If you have committed a traffic infraction or been in an accident, it is a violation-level offense to refuse the breath alcohol test. A violation-level offense is not a crime - it's like a speeding ticket.
The chemical breath test is the test that you are given at the police station, or in the police van that sometimes comes to where you are pulled over. It is never illegal to take this test. You can always refuse it. But there are consequences. First, the DMV will revoke your license for a year if you refuse the chemical test. Second, at trial, the judge will read the jury an instruction that goes something like this:
"Under our law, if a person has been given a clear and unequivocal warning of the consequences of refusing to submit to a chemical test and persists in refusing to submit to such test, and there is no innocent explanation for such refusal, then the jury may, but is not required to, infer that the defendant refused to submit to a chemical test because he or she feared that the test would disclose evidence of the presence of alcohol in violation of law."
So, given all this, why would you refuse the breath test? Is there an innocent explanation? Here are some reasons to refuse:
- I once had a client who was an engineer. He refused to take the breath test, "...because I could tell that the cop trying to operate the Datamaster didn't know what he was doing, and I had no idea if that thing was calibrated correctly."
- Some people decline to take breath tests because they have diabetes, and they worry that the acetone in their blood (due to uncontrolled insulin levels) will register a false result.
- Painters or people who work in environments with exposure to acetone at work may be concerned about false positives.
- I've spoken with cops who say they would never take a breath test because they either don't trust the machine or the operator.
- I once had a client say, "Of course I didn't take that test. Doesn't the Bill of Rights protect us against searches like that?"
At the end of the day, you need to decide whether refusing the breath test is the right choice for you.
If you are arrested for DWI, whether you took the test or not, call us. We have excellent client reviews, upfront pricing and an outstanding track record of winning at trial, there is no reason not to call for a free phone conversation.
If you have been arrested for a DWI or any other crime near Rochester or Geneseo, call The Militello Law Firm. We can help, and we want to hear from you. (585) 485-0025.