A critical phase of any DUI case is the chemical test of your breath, blood and or urine. If arrested, decisions will have to be made on the breath test and/or urine test. You can be requested to do both. Blood tests are rare in misdemeanor DUI cases and usually come up during serious injury and fatality cases. In a DUI with serious bodily injury or fatality, a blood test is mandatory under those circumstances.
The decision to refuse or submit to a test is very important. Many individuals believe that if they have had a few drinks they should refuse. The problem is that a refusal carries substantial consequences. The first question that needs to be asked is are you more concerned about a DUI conviction or not being able to drive. No matter how high you blow you will be able to drive in a restricted capacity after 30 days without driving if proper steps are followed. A first refusal would have a 90 day hard suspension without any hardship license.
When should you submit to a breath test? If you primary concern is the restriction on your ability to drive. If your breath alcohol content is likely to be near or under the legal limit. If you are slightly over .08% the intoxilyzer has a 3 point or 3% inaccuracy as disclosed by the manufacturer. This is on controlled lab tests and is likely minimized for marketing purposes. The breath test machine also uses a .02 tolerance to verify the results. Two tests are taken for verification. If you blow a .08% any result between .06% and .10% would be valid for the second test. If your breath alcohol content is near .08% these built in inaccuracies help you.
A separate method to attack the results if they are around .08% is retrograde extrapolation. Retrograde extrapolation is the mathematical process by which the accused’s blood alcohol concentration at the time of driving is estimated by projecting backwards from a later chemical test. You are not DUI for sitting in the police station over .08%. The blood alcohol content could increase or decrease between .015% and .02% per hour. The only way to tell would be to know your metabolism, when and what you had to eat and when and what you had to drink. You have a right to remain silent so the state will not know. If it could be higher or could be lower you have a reasonable doubt and a fighting chance of beating the case. Many counties will reduce cases with lower breath alcohol content and some counties in Central Florida will divert the case allowing you to have an opportunity to have your case dropped. Refusals sometimes receive reductions and diversions but it is generally a policy of prosecutors to fight harder when the accused refuses.
When should you refuse a breath test? If it is clear that your breath alcohol content will far exceed the legal limit but only if punishment and convictions are your primary concern. You could still receive the administrative suspension regardless of the outcome of your criminal case. If your result is over .15% you will face an increased fine and interlock on your car but you will still be able to receive a hardship 30 days after your license is suspended.
A DUI conviction can end some careers. If that is the case a double refusal might be the best option. No field sobriety exercises and no breath test. If you are a commercial driver refusing can cause additional issues by being calculated as a strike against you. If later convicted of DUI the two strikes could permanently suspend your CDL.
Daytona Beach DUI Lawyer Kevin J. Pitts areas of practice include criminal defense and DUI defense. A former prosecutor, Mr. Pitts handled hundreds of DUI cases. Visit his website at www.myduiflorida.com.