Drunk driving is a very common occurrence and sadly leads to the deaths of almost 40 Americans daily. It’s understandable that police officers are diligent in their enforcement of this area of the law. At the same time, no one wants to be pulled over by the cops. But should you comply with an officer’s request for a breathalyzer test, or is it a smarter move to refuse? We at Cannon and Associates in Oklahoma City, OK can give you advice from the perspective of a DUI lawyer. Read on to find out more.
Can Refusing a Breathalyzer Test Help My Case in Oklahoma?
Essentially, no. Refusing a breathalyzer test will not help your case. Rather, it is likely to lead to additional charges being laid against you. This is because of a number of points of law, the foremost of which is Oklahoma’s Implied Consent Law.
Oklahoma’s Implied Consent Law
Oklahoma – along with all other states – treats driving as a privilege, not a right. By owning an Oklahoma driver’s license or using Oklahoma’s roads, all drivers give their “implied consent” to law enforcement to carry out routine stops and administer breathalyzer tests or field sobriety tests as needed to determine whether they are driving under the influence.
This means it is lawful for a police officer to require you to submit to a breath test. If they do require you to do this, they will read you a declaration explaining what is being asked for, and the declaration will make it clear that you are explicitly not entitled to speak to an attorney before you undergo the test.
That being said, you cannot actually be forced to provide a sample of breath. However, if police are in possession of a warrant to test you, or if you have been involved in an accident that has resulted in a fatality or serious injury, they will take a sample of your blood for testing, and you will not be able to refuse. Additionally, if you are found unconscious in charge of your vehicle, medical personnel have legal permission to draw blood for testing.
Refusal Will Not Save You
Though you cannot be forced to give a sample of breath to the police except under certain circumstances, refusal will not help your case. Refusal to provide a sample of breath will not prevent you from being arrested if an officer deems you to have been driving dangerously. After your arrest, a warrant may be acquired that will require you to provide a sample of blood.
Additionally, your refusal will not help you to avoid a DUI conviction. Your blood alcohol concentration is not needed to secure a conviction, and your refusal to cooperate with police will be taken as evidence of guilt. This is also the case for drivers who intentionally and repeatedly fail to provide an adequate sample of breath by blowing too little.
What Happens If I Refuse?
If you refuse to provide a sample of breath when requested to do so, the officer will fill out the form, “Officer’s Affidavit and Notice of Revocation/Disqualification.” This form has information about your arrest and puts you on notice that the Oklahoma Department of Public Safety (DPS) will revoke your driving license in 30 days from the date that you are served. At the end of the 30 days, your license will be revoked for at least 180 days, and up to 3 years.
Refusal to provide a sample of breath is likely to result in additional penalties. These may include mandatory impaired driver rehabilitation courses and an ignition interlock on your vehicle which can stay on your car for up to five years. These are just the penalties that come from refusing a breathalyzer test, even before you get to any potential charges for driving under the influence of alcohol or drugs.
What Exactly Does the Law Say About Driving and Alcohol?
Driving While Impaired (DWI)
If your blood alcohol concentration is below 0.08% when tested, you are considered to be driving while impaired. However, this is not in itself a crime unless you are in some other way driving unsafely.
Driving Under the Influence (DUI)
You are considered to be intoxicated if your blood alcohol level is at or above 0.08%. Penalties for a first offense include a $1,000 fine and up to one year in jail. You are also likely to be required to do community service, attend substance abuse classes, have your license suspended, and have an ignition interlock device installed in your vehicle.
Driving Under the Influence (Under 21)
If you are under the age of 21, then you are considered to be driving under the influence if you have any measurable quantity of alcohol in your blood or breath, any other intoxicating substances in your blood, breath, saliva, or urine.
Aggravated Driving Under the Influence
If you are found to be driving with a blood or breath alcohol concentration of 0.15% or above then you are guilty of aggravated driving under the influence. More serious than a simple DUI, a first-time conviction for ADUI can result in a fine of up to $5,000 and a prison sentence of up to five years.
Child Endangerment
You may be guilty of an additional charge of child endangerment if you drive with your child in the car while under the influence of alcohol or other intoxicating substances, or if you allow someone else to do so.
This is the case unless the driver had reasonable apprehension that not doing so would result in substantial bodily harm to the person or child. This may sound like an unusual sort of defense, but may be used to defend a parent in cases where, for example, a parent has been unable to get an ambulance or other transport for a seriously ill child and has made the decision to drive their child to the hospital themselves, despite having had a drink.
What Should You Do? A DUI Lawyer Recommends
Stay Calm
It can be very stressful being pulled over by the police, but it is important to stay calm. Nothing will be gained by becoming angry or agitated. Be polite and reasonable.
Take the Test
As has been covered above, refusing the test does not prevent you from being arrested or convicted of a DUI.
Get an Independent Blood Test
If you blow over the legal limit, immediately ask for an independent blood test, and say you will pay for it. If the police do not provide you with an independent test when asked, it may invalidate their own test results in a court setting.
What If I’ve Already Refused?
If you have refused a breathalyzer test, then you should get in touch with us immediately. You will have already received the “Officer’s Affidavit and Notice of Revocation/Disqualification,” and have a limited amount of time in which to request an administrative hearing before your license is revoked.
Get in Touch with a DUI Lawyer in Oklahoma City
If you’ve run into trouble while driving after drinking; whether you’ve refused a breathalyzer or blown over the limit, we can help. Get in touch with us at Cannon and Associates in Oklahoma City, OK to find a DUI lawyer who will fight for you.