Let's talk about a
DWI breath test. The dreaded breath test. Everyone thinks of a breath test
as being the end-all be-all in a DWI case. And in a way, it can be. It
definitely gives the police, the prosecutors, the judge, and the jury
and pretty-good indication of your blood alcohol concentration. Something
a jury can hang their hat on rather than a step off the line or slur that
may or may not just be a speech impediment.
The thing about a breath test is that it MUST be voluntary. But, because
of the implied consent law, if you don't volunteer to give a breath
sample, you can still be faced with repercussions. The statute reads that
if an individual refuses to give a breath sample 1) "that refusal
may be admissible in a subsequent prosecution" and 2) "your
license, permit or privilege to operate a motor vehicle will be suspended
or denied for not less than 180 days, whether or not you are subsequently
prosecuted for this offense." To put that in layman's terms,
if an individual refuses a breath test, his/her refusal can be used against
him in court, and whether or not the DA's office files charges for
a DWI, the individual can still lose their driving privileges for 180 days.
The refusal and other warnings can all be found here in this DIC 24.
The statute is written and read to DWI suspects in order to inform them
of the effects of refusing a breath test and to protect them from making
uninformed decisions. It is because of this protection that police are
only allowed to read from the statute. The courts have held that if an
officer gives a DWI suspect extra-statutory information about refusing
– penalties not listed in the statute – even though factually
correct, it undermines the protection given by the statute.
By undermining the statute protection, the courts consider these extra-statutory
warnings a type of psychological coercion on DWI suspects. A voluntary
decision to give a breath sample must be free of physical and psychological
coercion. Thus, if a DWI suspect is coerced through extra-statutory warnings
given by the officer, relies on those warnings, and gives a breath test,
that breath test is not allowed to be used as evidence against him.
To give a breath sample or not to give a breath sample is a decision to
be made solely on your own with guidance only from the statute. A breath
test must be voluntary to be admissible. The statute gives DWI suspects
the information needed to deny or consent to a breath test, and the police
may not help sway a decision.
It comes down to the officers and the prosecutors just wanting to keep
the roads a safe place for everyone; even if that means making sure all
of their I's are dotted and their T's are crossed when charging
someone with a DWI.
I'm here to help you make sure they've done just that.