Getting pulled over for a suspected DWI/DUI can be intimidating, regardless of whether or not you’ve been drinking. In the last chapter, we discussed the importance of remaining calm and remaining silent during the traffic stop. In this chapter, we will explore the various tests law enforcement may ask you to perform and why we advise against submitting to them.
Why Refuse Sobriety Tests?
We advise against submitting to a breathalyzer, field sobriety tests, or other tests for the same reason you should remain silent: By submitting to these tests, you are giving law enforcement more evidence to use against you. The main reasons for refusing are:
- Keep law enforcement from acquiring additional evidence against you
- Reduce the state’s evidence to simply the arresting officer’s judgment
Won’t My License Get Suspended If I Refuse Sobriety Tests?
Possibly, and without the aid of an experienced DWI defense lawyer, almost certainly. Under Missouri Revised Statute §577.020, refusing a test – with the exception of a portable breath test – from an officer who had “reasonable grounds to believe” you were “operating a vehicle or vessel while in an intoxicated condition” will lead to a license suspension of one year. This is known as “Chemical Revocation.”
Driving in Missouri (and throughout the United States) is considered a privilege, not a right. All U.S. states operate under the principle of “implied consent.” Implied consent is the legal principle that by applying for a license and driving on public roads, drivers automatically agree to submit to chemical tests for alcohol or drugs if suspected of driving under the influence. From the state’s point of view, if you refuse the tests you are breaking your agreement, so they have the right to withdraw your driving privileges.
Still, our DWI/DUI defense attorneys recommend not submitting to any tests. In most cases, a capable DWI defense attorney will be able to keep your license from being suspended because of a Chemical Revocation. Without the added evidence of breath, blood, urine, and field sobriety tests, your case may become a simple license suspension/revocation case instead of a full-fledged DWI/DUI case.
Won’t I Get Arrested and Charged if I Refuse Sobriety Tests?
It’s a possibility, but that’s almost always true if you submit to the tests. It is much easier to fight against a DWI/DUI charge, or even have it dismissed or the charges reduced, without the added evidence from the tests.
Combs Waterkotte’s defense attorneys recommend simply telling the officer they can take you into custody immediately after the traffic stop turns into a DWI/DUI investigation. Most first time offenders will be released 8-12 hours after they are detained. If you follow our advice and contact an experienced DWI/DUI attorney while in custody, they will have already started building your defense.
Now, let’s look at each type of sobriety test and why you should refuse them.
Field Sobriety Tests
Field sobriety tests (FSTs) are often used by law enforcement to assess a driver’s level of impairment. These tests include:
- Horizontal Gaze Nystagmus (HGN): Observing the eyes to look for jerking movements.
- Walk-and-Turn: Walking in a straight line and turning on one foot.
- One-Leg Stand: Standing on one leg for a certain period.
These tests are highly subjective and can be influenced by various factors such as:
- Nerves: Being pulled over, speaking to law enforcement, and being asked to perform sobriety tests can be nerve-wracking and intimidating, affecting your performance.
- Medical Conditions: Conditions like vertigo, inner ear problems, or even being overweight can impact balance and coordination.
- Environmental Factors: Uneven surfaces, poor lighting, and weather conditions can affect test performance.
Again, while officers are trained to conduct the tests, these tests are highly subjective and open to interpretation. An officer’s bias or misunderstanding can lead to incorrect assessments of your sobriety. FSTs are even often “failed” by people who haven’t had anything to drink. Even if you perform well, the officer’s interpretation of your performance can be biased and used against you. Because courts value law enforcement testimony highly, your best bet is to simply not provide the state with additional evidence against you.
Breathalyzers
There are two types of breath tests:
- Portable Breathalyzers (PBT): These are used on the scene and are less reliable. Refusing this test will not lead to a Chemical Revocation.
- Stationary Breathalyzers: Administered at the police station and are considered more accurate. Refusing this test will lead to a Chemical Revocation.
Refusing a breathalyzer test means the state will have to rely solely on the officer’s observations and your behavior at the scene, which can be easier to challenge in court. The main reasons to refuse:
- Technical Reliability: The variability in the devices’ accuracy means that you could be unfairly charged for an incorrect reading.
- Evidence Reduction: By not providing a BAC reading, you limit the quantitative evidence that can be used against you, making it harder for the prosecution to prove their case beyond reasonable doubt.
Blood and Urine Tests
If you are taken into custody and refuse a breath test at the station, police will ask you to submit to a blood and/or urine test to determine your BAC. The U.S. Supreme Court has ruled that obtaining a blood or urine sample is a form of a search under the Fourth Amendment. That means that police must either obtain your consent or a warrant to legally collect a sample. If you refuse and they obtain a warrant, police are allowed to use reasonable force to get a sample, even by using a catheter to collect urine. Therefore, up until the time you are presented with a warrant, you should refuse all tests with the same goal of limiting the state’s evidence against you.
Here are a few other reasons why:
- Warrant Requirement: If the police obtain a warrant, it ensures they have followed proper legal procedures. This process requires the officer to demonstrate probable cause to a judge, which can provide additional grounds for your defense if the warrant was improperly issued. While probable cause is necessary for many law enforcement actions, the requirement for a warrant adds an extra layer of judicial oversight specifically for blood and urine tests.
- Chain of Custody: Proper chain of custody must be maintained from the time the sample is taken to the time it is analyzed. Any break in this chain can be used to challenge the validity of the evidence. This meticulous documentation process provides multiple opportunities for defense attorneys to find errors or lapses.
- Testing Errors: Laboratory errors, such as improper procedures or equipment malfunctions, can lead to inaccurate results. Improper handling or storage of samples can lead to contamination and inaccurate results. Contaminated samples can produce false positives or exaggerated BAC levels.
- Test Timing: The timing of the test in relation to your last drink can significantly impact BAC levels. As your body processes alcohol, BAC levels rise and fall, and a delayed test may not accurately reflect your BAC at the time you were driving. This delay can be advantageous for your defense.
- Rising BAC Defense: As your body processes your last drink or two, your BAC levels will continue to rise even after you’ve stopped drinking. This means if a blood test—performed at the station after a warrant—reveals that your BAC was over .08%, your defense attorney may be able to argue that it was below .08% at the time you were driving. This defense hinges on the natural metabolic processes of alcohol in your body.
Refusing these tests until a warrant is obtained forces law enforcement to adhere strictly to legal protocols, providing your defense attorney with more opportunities to identify procedural mistakes that could benefit your case.
The case of Missouri v. McNeely underscores the importance of police needing to follow proper procedures. An individual was stopped by a police officer for speeding and suspected of drunk driving. Upon refusing a breath test, the officer took the individual to a hospital and ordered a blood test without obtaining a warrant, even though the suspect refused. The test showed the suspect’s blood alcohol content was above the legal limit. However, the suspect argued that the blood test without a warrant violated his Fourth Amendment rights. The U.S. Supreme Court agreed, ruling that the police must generally obtain a warrant before conducting a blood test unless there is a true emergency. The natural reduction of alcohol in the bloodstream over time does not count as such an emergency.
In this case, even though the state had evidence the suspect was drunk, the evidence could not be used against him because police didn’t follow proper procedure.
Refusing breathalyzers, blood tests, urine tests, and field sobriety tests is a strategic decision to protect yourself from providing additional evidence that could be used against you in a DWI/DUI case. While this approach may lead to temporary consequences such as a license suspension, the absence of test results can significantly weaken the prosecution’s case, and a license suspension is much easier to beat than a DWI/DUI charge. Seeking the counsel of a defense lawyer who specializes in DWI/DUI charges as soon as possible will allow you to mitigate any consequences of refusing the tests.
