Mobile County Criminal Law Attorney

breathalyzer test

Why You Should Not Give a Breath Test During a DUI Investigation

You see the police car light signaling you to pull over. Then the officer shines a light in your car and looks at your eyes.  He may suspect you have been drinking therefore he has probable cause to have you take a field sobriety test, or a preliminary breath test (PBT).

You may not be intoxicated. Maybe you had a glass of wine or two with your meal.  You may have consumed no alcohol but still find yourself pulled over.

Technically, intoxication is defined in the state of Alabama at a blood alcohol concentration (BAC) of 0.08 percent or more. If you are a 100-pound person, your body can get to that limit much faster than a 200-pound person.  Whether you had food or not also will make a difference as will the speed with which you consumed the alcohol.  

Know your options before this scenario happens to you. 

First Step – Field Sobriety

It is important to recognize that driving under the influence (DUI) is a crime. Because this is so potentially serious, it is important to understand your rights. Darley Law is experienced at advising you on the right direction to take to minimize the impact on your life.  

Also understand that operating a vehicle in Alabama means you obtained a driver’s license. In doing so there is an implied consent that you will undergo whatever method to measure your BAC if you are arrested for DUI.

Implied Consent Laws

When you obtain a driver’s license in Alabama, you are essentially agreeing to not only follow the rules of the road but to submit to a test for DUI if there is probable cause. This is not the same as the portable breath test that you are given at the time you are stopped, it is a chemical test that is administered at the police station or hospital after you are arrested for DUI.

Under Alabama code, drivers using Alabama roads must give an automatic consent to the chemical test:

“Any person who operates a motor vehicle… shall be deemed to have given his consent… to a chemical test or tests of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood…” Alabama Code Section 32-5-192.

If you refuse, your license could be suspended for 90 days, and your refusal may not sit well with the court. In other words, you can refuse, but expect it to be used against you.

If this happens again, and you refuse a breathalyzer within a five-year period, expect your license to be suspended for one year.

Expect you will have to find another way home without your car.

But what if you believe there is no reasonable ground to believe you are driving under the influence?

  • Stay Calm – take a few deep breaths and remind yourself to be courteous to the officer. Any belligerence will only work against you.
  • Field Sobriety Test- You may be asked to take a field sobriety test to determine if you are DUI.  
  • You can legally refuse to take the field sobriety test which might involve walking, standing, and touching your nose, without penalty. You can also refuse the preliminary breath test.

What the police can then do is ask you to step out of the car. He may ask you to perform actions such as touch your finger to your nose or stand on one leg, this too you can politely refuse.

These are less than foolproof because anyone may have trouble standing on one leg.

Because police do not yet know if you are intoxicated, it is best to politely refuse to submit to the field sobriety tests. This is obviously the best option if you have been drinking. 

The tests are designed to prove there is probable cause that you have been drinking, but the officer may not tell you that taking a field sobriety test is optional.

Preliminary Breath Test

The officer may ask you to submit to a preliminary breath test. This is also known as a preliminary alcohol screening (PAS) test. At this point, the officer is still trying to determine if there is probable cause to arrest you.

You can refuse a roadside PAS without consequence unless you are under the age of 21 or are found to be on parole.  At this point you have not been arrested and therefore not legally required to take a test, that is, until the officer has a warrant for your arrest.  

The PAS should not be confused with the chemical or “official” breath test.

With the PAS test, the officer uses a breathalyzer to measure the amount of alcohol in your breath.  The problem with a portable breathalyzer machine is it is unreliable.

The machine has to be calibrated to that individual’s body type, officers may be inexperienced in conducting the test, the individual may have alcohol in his/her system from other causes such as a workplace exposure. A breathalyzer can only estimate the alcohol present in your body, not measure it, which can only be done with a sample of blood.

Chemical Test

The next step the officer may take in determining if you are intoxicated is a chemical test which involves taking samples of blood, urine, or breath.  These are known as chemical tests and they are more invasive and are usually conducted at the police station, but sometimes at a hospital.

There are penalties for refusing a breath or chemical test after a DUI arrest, which can involve the loss of a license.  

Your Rights During a DUI Investigation

Alabama, like other states, cannot require a driver to take a field sobriety test. They too are notoriously unreliable for a number of reasons – you are nervous, you may have a medical condition, the pavement is uneven, and the officer is not trained to medically evaluate you. Even sober people fail a field sobriety test sometimes. The officer may imply that taking the test is mandatory or that it is in your best interests to do so. It is not.

Your Experienced Alabama DUI Attorney

Being pulled over for DUI does not have to ruin your life. Hiring Jason Darley can give you a fighting chance to avoid a criminal conviction and the profound impact it will have on your record, your license, your career, your family, and possibly your freedom.  

Call Jason Darley in our Mobile office to begin the conversation at (251) 732-7058.

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