If you are ever investigated for driving while intoxicated, you may be asked if you are willing to take a breathalyzer test. The breathalyzer test is a test that measures the amount of alcohol in your blood through a sample of your breath. The police cannot force you to take this test. And if you refuse the test, you can still be charged with DWI/DUI. The decision of whether to take the test is an important one and, given the nature of the investigation, it stands to reason that you may not be in the ideal state of mind during the time in which you must make it.
There is no universally correct answer to the question of whether to submit to a test. A few times during my career, I’ve been called by clients from the back of a police car asking me what they should do. I usually ask one question: how important is it that you be able to drive?
Driving an automobile is a privilege, not a right. When you apply for a driver’s license in your state, you are entering into a contract with the state, whereby you agree to certain things as consideration for the right to drive. One of the most important things you agree to is to submit to a breathalyzer test or other chemical test upon request by a police officer. When you refuse to submit to a chemical test, you are breaching your contract with the state and, as a result, you must suffer certain consequences. The most significant consequence you likely will face is losing your right to drive. In most states, if you refuse to take the test, your driving privileges are suspended for one year, regardless of your guilt or innocence in the criminal case. Moreover, you are not eligible for a hardship or conditional license during that period. Thus, if you refuse the test, you may lose all ability to drive during the applicable suspension period.
If you can’t survive without driving, it may not be in your best interest to refuse the test. Contrary to common thought, you also may give yourself a better chance of beating a DWI/DUI by submitting to a test. If you are charged with DWI/DUI, it is true that you generally stand a better chance of success at trial if you don’t submit to a test. However, if you don’t submit to a test, it is almost guaranteed that you will have to take your case to trial. In most courts, if you refuse a chemical test, the prosecutor will not offer to reduce the charge voluntarily. Thus, by refusing the test, you eliminate the possibility of having the DWI/DUI reduced or dismissed without having to endure a trial.
Taking the chemical test also doesn’t necessarily mean you can’t still have the charge dismissed following a trial. Many judges will still dismiss the DWI/DUI if the chemical test result is within a certain range. Thus, if you submit to the test, and the result isn’t too high, a judge may still be willing to dismiss the charge.
Generally speaking, if driving is more important to you than avoiding a DWI conviction, you should probably submit to the test, given that submitting to the test does not mean you still can’t avoid being convicted of a DWI/DUI.