While my advice here is absolutely not to get behind the wheel if you’ve been drinking, the reality is people do drive after they have been drinking. (I don’t say this in a judgmental way, it’s just I see how unfair the system is in the sense that even sober people can fail a field sobriety test. When you couple that with the fact that even if you blow UNDER the limit, you are still going to jail, I just want to warn people to not take that chance if at all possible.)…Now, contrary to what might seem logical, driving after drinking IS NOT illegal. If that were so, why in the world would there be parking lots outside of every bar, restaurant, or establishment that serves alcohol to people that surely drove themselves there? So drinking and then driving is not what is illegal. What makes it illegal is when a person is driving under the influence (whether it be alcohol or drugs) TO THE POINT that it impairs their “normal faculties”, in other words, ability to drive at a “normal” level. Without getting into that here, the question I get asked many times is if an officer orders you to take a breath test, should I blow?
Well, there are varying legal schools of thought on this and different reasons why. However, the current state of the law makes refusing a really bad option. When someone refuses to take a breath test, the Department of Motor Vehicles (DMV) will suspend your license for a full year (compare that to someone who takes the test and blows 3 times the limit — they only lose it for 6 months). Also, if you want to apply for a hardship or business permit to allow you to drive during the suspension period, a person who refuses has to wait 90 full days before they can apply for that hardship license. Again, the person who took the test (for the most part regardless of how high the number or level of alcohol detected) will be eligible for a hardship license in 30 days. This difference is huge for many people who need to drive in order to maintain their employment or to get their kids to and from school, etc.
Finally, the fact that a person refuses to take one of these tests WILL and CAN be used against them in a trial on the criminal DUI case as EVIDENCE in that it is considered to be a presumption that you were over the limit. So a jury would get to draw an inference or conclusion from the fact that you refused, that it must mean you were probably over the limit.
Many people are skeptical of the devices used for the test, as they should be. The machines have been and continue to be challenged in court for their validity, their accuracy, and their reliability. These are valid concerns regarding the machine, however, if you do not blow, there is no test to challenge. God forbid you, a friend or family member find yourself facing a DUI charge, please feel free to contact our office to discuss your rights, options, and defenses based on the circumstances of your situation.