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Are motorists required to take the ROADSIDE breathalyzer and the FSTs?

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Are motorists required to take the ROADSIDE breathalyzer and the FSTs?

Postby syvwkh » Fri Mar 23, 2012 10:48 am

I recently talked to a traffic lawyer friend of mine. He does several DUI cases, and he said that the implied consent law applies ONLY to the chemical test at the station, and NOT to the tests administered at the traffic stop.

He said that if pulled over and asked if you have been drinking or asked where you are coming from, you do not have to answer. Is this true?

He said that you do not have to submit to a preliminary breath test or a field sobriety test. Is this true? He said that a LOT of people fail the FSTs sober or if they are anxious (which most people would be).

He said what you DO have to consent to are the chemical tests that are administered AFTER you get arrested, and that you always have the choice between urine, blood, and breath. Is this true?

If all of this is true, what happens if I refuse to take any or all of the roadside tests? Will I still be arrested for DUI? What happens if I blow a 0 at the station? Will I be released? If they can arrest me without my submitting to a FST, then why do they even bother to administer them? Just to give them more evidence against me!?

I am not a drunk driver, and I have NOT been charged with DUI, so I don't want any rude remarks. Also, I don't want answers like "don't drive drunk and you won't have a problem." I do not drive drunk, I am JUST curious.
syvwkh
 
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Joined: Sat Apr 02, 2011 5:46 am

Are motorists required to take the ROADSIDE breathalyzer and the FSTs?

Postby yago » Fri Mar 23, 2012 10:49 am

I recently talked to a traffic lawyer friend of mine. He does several DUI cases, and he said that the implied consent law applies ONLY to the chemical test at the station, and NOT to the tests administered at the traffic stop.

He said that if pulled over and asked if you have been drinking or asked where you are coming from, you do not have to answer. Is this true?

He said that you do not have to submit to a preliminary breath test or a field sobriety test. Is this true? He said that a LOT of people fail the FSTs sober or if they are anxious (which most people would be).

He said what you DO have to consent to are the chemical tests that are administered AFTER you get arrested, and that you always have the choice between urine, blood, and breath. Is this true?

If all of this is true, what happens if I refuse to take any or all of the roadside tests? Will I still be arrested for DUI? What happens if I blow a 0 at the station? Will I be released? If they can arrest me without my submitting to a FST, then why do they even bother to administer them? Just to give them more evidence against me!?

I am not a drunk driver, and I have NOT been charged with DUI, so I don't want any rude remarks. Also, I don't want answers like "don't drive drunk and you won't have a problem." I do not drive drunk, I am JUST curious.
Questions about drinking, departure point, or destination? You do not have to answer. Simply state you wish to speak to an attorney before answering any of those questions. If you surrender driver's license, registration, and proof of insurance, you do not need to answer ANY other questions, other than possibly "Do these documents belong to you?"

Roadside breathalyzer? Depends on the law in your state.

Field sobriety tests? You do not have to submit to any of them. If you are ordered to perform them and you make it clear that you do not consent to performing them, and are only doing them under duress, any results from them would be thrown out in court. Most of these tests are unreliable. The eye nystigmas test is somewhat reliable. (The one where you follow a flashlight with your eyes...the other tests are mostly junk science.)

You do not have to consent to the other tests given after you are arrested BUT you will have your license suspended, automatically, if you refuse them. The duration of suspension varies by state, and can be up to one year. It is nearly impossible to get out of this suspension, it is the automatic penalty under law for refusing the test.

If you refuse a chemical test after you are arrested, it is possible for the police to get a search warrant from a judge to draw blood from you without your consent (there is no practical way to force you to blow into a breathalyzer).

Breath, blood, or urine...this depends on state and local law. It's not uniform all over the US. Some places only have breath, some two, some you don't get to pick. Check you local laws.

If I was absolutely stone cold sober and not on any sort of medication, I would demand a blood test. Even if you blow 0.000 on the breathalyzer, that is not proof that you are not intoxicated on street drugs or prescription drugs. A blood test is about the closest thing there is to absolute proof that you were not under the influence of any substance.

If you refuse the roadside tests, and the officer who made the stop believes he can make a case that you are DUI, you will be arrested. If you blow 0.000, you may be released and usually will be. It is also possible (much less likely) that you will be accused of driving while under the influence of some other substance.

And yes, the primary reason for administering FSTs is to build evidence against you. Most people who attempt them do so out of false hope that the roadside tests will get them out of an arrest. Many innocent people have failed these tests. If the officer strongly suspects DUI, and smells any alcohol on your breath, smells any marijuana odor in the car, or observes symptoms that could be due to drug use (dilated pupils, etc.), it is highly likely you will be arrested whether you perform the FSTs or not, even if you are stone cold sober.
yago
 
Posts: 54
Joined: Fri Apr 01, 2011 5:44 pm


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