ARRESTED FOR DUI – SHOULD I TAKE THE BREATH TEST

First it must be understood that there are two breath tests that are given in a typical DUI arrest in Michigan. The preliminary breath test (PBT) offered on the street and the BAC Data master test offered after arrest in the police station. THE PBT RESULT CANNOT BE USED AS EVIDENCE OF GUILT. The penalty for refusing a PBT is a zero point civil infraction – a fine. Taking a PBT only helps the police determine if they should arrest you so why take it?

The breath test in the police station, called a Data master test, can and will be used against the driver in court. The Data master test is the focus of this article. The question of whether or not to take it cannot be answered with a YES or NO in every case. To properly answer this question requires an analysis of the circumstances. The decision to submit to a breath alcohol test is largely a strategic one. A major consideration is the consequence to the person’s driver’s license.

Maryland  law requires every person with a Michigan driver’s license impliedly consents to a breath or blood test (officer’s choice) upon being properly arrested for DUI. Refusing a breath or blood test after a proper DUI arrest will result in a 12 month license suspension – tough penalty. The high likelihood the police will seek and obtain a search warrant for blood is a factor to be considered. The possible benefits of refusing the test and the likely outcome of the case must be balanced with the penalty.

Possible benefits of refusing a breath test include:

  • The delay in time obtaining a warrant and blood draw will allow BAC to decrease
  • Police may not have the time or opportunity to seek warrant and/or get blood draw
  • Arrest facts may be not be strong enough to successfully obtain search warrant
  • Warrant obtained on weak facts can be effectively challenged in court
  • There are more sources of error in a blood alcohol test (collection, preservation, analysis) than a breath test

With an experienced DUI specialist attorney, a breath test can be effectively challenged in court as well. Therefore, it is this writer’s opinion that if the driver has NOT been convicted of a DUI within the past seven years they should ALWAYS TAKE THE TEST. The seven year time frame is important because two DUI offenses within seven years results is a one year minimum license revocation which would supersede the refusal suspension.

What about a driver with a recent prior offense? If convicted your license will be revoked anyway but that is not always the deciding factor. The idea is to set the case up as best you can to have an effective fight in court. Additional considerations include the following:

Weak factual arrest case – if a driver does not get pulled over for erratic driving, passes or refuses to do the field sobriety tests, does not take the PBT and is not visibly intoxicated, refusing the Data master breath test may be a good strategy. The officer should not have arrested the driver in the first place. They can’t just arrest anyone they want. They have to have enough evidence to establish a legal standard called probable cause. An effective legal challenge to the arrest and the search warrant (both lacking the probable cause) can be made.

The Data master has been created to be operated easily any without any expertise. Training police officers to operate the instrument is performed without them having to learn any of the science underlying its operation and how it works. To admit the test in court a police officer just has to establish they were certified and that they administered the test properly. A blood test is completely different. The person who drew the blood sample has to be adequately trained and testify about the specific procedures. The forensic scientist is also qualified as an expert and is knowledgeable about the specifics of how the blood alcohol measurement is calculated. Blood alcohol DUI case evidence is much more technical but there are many more sources of error and therefore can be attacked more effectively than breath tests – with an experienced and knowledgeable attorney.

Michigan law says you have to take the chemical test offered by the arresting officer. Following Michigan law is advisable as well. The important thing to remember is to hire the right attorney to provide the best defense and obtain the best possible resolution.