“Do I have to blow?” It’s a fairly common question we
receive from potential clients who are wondering if they accidentally
weakened their case. They’re referring to whether or not they actually
legally had to take a breathalyzer test, which requires blowing into a
mouthpiece which then detects how much alcohol is in someone’s breath.
This is a confusing question because many people may not realize that
they may not have been legally required to take a breathalyzer test.
The answer isn’t always so crystal clear, and it’s because
implied consent law. Essentially this law states that by operating a vehicle on a public
road, you agree to take a chemical test in the event you are arrested
on suspicion of driving under the influence. You are legally compelled
to take this test, but only if you’re placed under arrest. Until
you are arrested, you are permitted to decline taking the test, or any
field sobriety tests an officer may conduct as well.
Chemical Tests Are “Searches”
A chemical test is similar to a “search.” When an officer conducts
one of these tests, they are searching for evidence that an offense may
have been committed. The results of your chemical test is that evidence,
and it’s what officer will submit to prosecutors if you’re
to be charged.
However, officers can’t legally gather any evidence without your
permission unless they have authorization to conduct a search. They can
do this in a few different ways:
- Warrant: Officers petition a court for a search warrant, telling them what type
of evidence they believe they’ll find, where they’ll be searching,
and when. These must be extremely specific, so they’re not used
in DUI cases as someone will most likely have been sober for hours or
even days by the time the warrant comes through.
- Preservation of evidence: Officers have permission to conduct a search if they believe that failing
to do so is going to lead to the destruction of evidence.
- You consent to the search: Officers may legally collect evidence against you if you give them permission
to search you, your vehicle, your home, or any of your other possessions.
You may realize that none of these really apply to DUI cases. However,
DUI is seen as a special case. So long as officers are able to establish
“probable cause,” which essentially means that they have a
reasonable suspicion that an offense has been committed based on the available
evidence at the time, they can place you under arrest. Once you are arrested,
Pennsylvania’s “implied consent” laws say you are required
to take a chemical test.
If you are arrested and still refuse to take the test, the consequences
become a lot more severe. If you refuse, you will automatically be given
a one-year driver’s license suspension for a first offense. A second
or third offense will see the suspension last for 18 months. The suspension
will still remain, even if you successfully have your case overturned
or dismissed in criminal or civil court. And you won’t actually
be improving your case either: prosecutors can and do use your refusal
to take the test as an admission of guilt.
Preserving Your Right to Avoid Self-Incrimination
If you’re pulled over on suspicion of DUI, what can you do that’s
within the boundaries of the law, but still helps you preserve your right
to avoid self-incrimination? After all, you want to admit to nothing,
answer no questions, and give officers no reason to suspect that you’re
committing the offense of driving while intoxicated.
Unless an officer places you under arrest,
do not blow. If an officer asks you to blow into a breathalyzer machine, ask if you’re
under arrest. If they say no, you have the right to refuse to take that
test, and it’s strongly advised you do so. In fact, you can refuse
to take part in field sobriety tests of any type as well, and it’s
likewise advised you do because of how wildly inaccurate they can actually be.
Second, if you’ve been arrested, don’t hesitate to seek help!
Call a Scranton criminal defense lawyer and discuss your case in greater