The breath test


You’ve been pulled over in a routine traffic stop. The officer suspects you may be under the influence of alcohol and asks you if you will submit to a breathe test. This is among the most difficult decisions that my clients and other drivers must make when asked by a law enforcement officer on the side of the road.

To begin, there are two distinct types of breath tests.  There is what is often called a preliminary breath test, or PBT, which is only admissible in court to show that there, was a presence of alcohol in a driver’s system.  This is often redundant for the officer when the driver admits to having had two drinks, or admits to having drunk any alcohol.  The other test is the state administered breathalyzer test, which is a much more complicated piece of machinery that requires state certification and training to operate.

In order for the officer to ask for a driver to submit to this breathalyzer test, several conditions must be met.  There must be probable cause for the stop of the driver.  The driver must be under arrest.  The driver must be read what is called “implied consent,” which is a very specific notification advising the driver on what might occur if he/she refuses to submit to the test.  There are other requirements as well.  If these conditions are not met, the officer risks that the results of the test may be inadmissible as evidence at a later trial.

The consequences for refusal are significant.  If a driver refuses to submit to the state administered test and the officer has met the precondition requirements, the driver’s license to drive can be suspended for one year.  This suspension is different from the suspension that would take place upon a conviction for DUI and does not come in as evidence in the criminal case.  In fact, this suspension is the subject of a separate court and civil hearing, if the driver files the appropriate paperwork and appeals the officer’s notice of suspension for failure to consent to the test.

If this sounds complicated, it is because there are a lot of moving parts and considerations that must be made within a specific time frame.  In certain cases, it may be in the driver’s best interests to refuse the test, endure a license suspension, and maintain a better chance of success in taking the case to trial.  If the driver submits and there is a test result of 0.08 or higher, the prosecution’s case against the driver is often much, much stronger.  This is true because regardless of how well a driver appears to handle field sobriety evaluations on a police car video, the jury is authorized to convict a driver of DUI when he/she has an unlawful blood alcohol content, or BAC.

So, while it is difficult to say whether or not the suspension will stick or be upheld in court, the most serious consequence for a refusal to submit to the state administered test is a one year suspension of the person’s driving privileges.  These considerations impact how the criminal aspects of the case should be handled and typically change the strategy on handling the case depending on the jurisdiction.