Throughout late night hours, DUI job force officers are out in force performing roadblocks and stopping motorists for any imaginable reason they can create in an attempt to arrest intoxicated chauffeurs. A question that is often asked is, "Should I refuse the test if stopped for DUI?" While there is no easy yes or no answer, there are pros and cons to refusing the State Administered Chemical Test.
To start with, let's resolve the downside of refusing to send to the State Administered Chemical Test. As soon as an arrest is made, the officer is REQUIRED to encourage the motorist of his/her 'Indicated Consent Rights". You can read my post "Suggested Consent versus Miranda Rights" to find out more on this concern. Within the "implied permission" notification, the chauffeur is recommended that failure to submit to the State Administered Chemical Test will lead to a suspension of his/her license or privilege to drive in the State of Georgia for one year (the loss of opportunity to drive in the State of Georgia is resolved to people licensed in a State other than Georgia). Therefore, there is the threat of a license suspension for a full year upon a refusal to send to the test. At the time of the arrest (upon a refusal), if the Officer is pursuing an administrative suspension of the chauffeur's license, he/she is required to release a copy of a kind referred to as type DPS-1205 to the driver. At the bottom of the form, the chauffeur is put on notice that, unless he/she files a hearing request within ten (10) company days from the date of the arrest, his/her motorist's license will be administratively suspended thirty (30) days from the date of the arrest. And naturally, the motorist can be guaranteed that, upon a refusal to send to the State Administered Test, there is a substantial possibility that he/she will be apprehended. Thus, the probability of a license suspension and an arrest are the most likely outcomes (disadvantage) of a refusal.
THE PROS (ADVANTAGE) OF A REJECTION When reaching a choice as to whether or not to decline one ought to initially think about the reason for the stop. The factor for the stop lays the initial foundation for the possible cause for the DUI arrest. Remember, at first, the DUI arrest is based on the officer's claims that the motorist was driving under the influence of alcohol (or drugs) "to the level it was less safe to do so". Accordingly, think about the reason for the stop. Was the driver stopped for speeding, no safety belt, or no turn signal? If any of these are the factors for the stop, without more proof, it would be extremely hard for the State to obtain a conviction for driving under the influence. On the other hand, if the driver is weaving all over the roadway, associated with an accident or fast asleep at the traffic control, the defense will need to be prepared to present a possible alternative to DUI as the cause of the driver's behavior.
So, let's very first assume that the driver is picked up speeding, no turn signal, no seat belt, or dui classes in Tempe stopped at an obstruction. At this moment, there is absolutely no evidence of driving under the impact to the extent it is less safe to do so. Therefore, the officer will release into his/her effort to construct sufficient evidence to make an arrest. The interrogation begins with questions such as, "Where are you originating from tonight?" or "Have you had anything to consume?" And, for the functions of this publishing, let's assume the driver has, in reality, been consuming. If the driver confesses to having actually taken in any alcohol, the collection of evidence begins to reinforce the State's case.
Since the motorist is not yet "in custody", a Miranda Caution is not needed at this phase of the investigation. Thus, anything the driver states can and will be utilized versus him/her. Likewise, keep in mind that the DUI task force automobile is equipped (in numerous jurisdictions) with a continuously taping video camera, and the officer has actually a microphone connected to the front of the uniform to tape-record the discussion. With that said, presuming that the factor for the stop was speeding, no turn signal, no seat belt, or an obstruction, if the chauffeur refuses to confess drinking, refuses to perform any field sobriety tests (evaluations), refuses to blow into the portable alcosensor, and declines to send to the State Administered Chemical Test, then the evidence that State in fact has versus that driver might be restricted to speeding, failure to utilize a turn signal, etc., in addition to the Officer's claims of an order of a liquor on the motorist's breath, bloodshot, watery eyes, etc. inadequate to encourage a jury beyond an affordable doubt that the driver was driving under the impact of alcohol to the degree it was less safe to do so.
Additionally, the officer will have problem declaring that the driver's speech was slurred or thick-tongued if the motorist reduces any conversation with the officer. The motorist must instantly provide a legitimate chauffeur's license and proof of insurance coverage and reduce any other conversation, if it is his/her intent to decline. However, what if the chauffeur was stopped, instead, for failure to maintain lane? The defense lawyer in representation of the case submits discovery motions needing the State to produce all of the proof it has against the driver, including any reports, statements, and VIDEO. At the trial of the case (or movement to suppress), the defense lawyer will be able to assault what is actually seen in the video, in addition to the possible cause for the stop, along with, the officer's failure to correctly perform the investigation. Things end up being significantly more complex if there is a mishap, specifically with significant residential or commercial property damages or bodily injury.
The Supreme Court has chosen to permit officers to engage in search and seizure of the motorist's blood by force if essential. Yes, in 2013, there are growing reports of motorists being by force held down by 3-4 people and a blood sample being drawn from the motorist's arm against his/her will. And a serious injury by automobile while DUI will bump the charge from a misdemeanor to a felony, and if convicted, leads to a three-year license suspension. Appropriately, the advantage to refusing is the motorist is restricting the proof the State can use in an effort to acquire a conviction. One mistake regularly made by drivers is the driver will perform the field sobriety tests (examinations) and then decline the breath test.
Well, by carrying out field sobriety tests, the chauffeur might be offering harmful evidence against him/herself. It's a recognized truth that the average citizen does not practice standing on one leg, walking heel-to-toe, and so on. Appropriately, the officer searches for hints during field sobriety examinations and will indicate ideas to support an arrest for driving while impaired if the driver lifts his arms for balance, fails to touch heel-to-toe while strolling the line, and so on. And, naturally, the officer always has the chauffeur carry out these tests in front of the patrol car so it can be captured on video (proof for the State to utilize). Now, let's presume that the chauffeur declines whatever (no admission of drinking, no field sobriety tests, no alcosensor, no breath test), what can be done to secure his/her driving opportunities?
Presuming that the driver files the hearing demand within ten (10) company days from the date of the arrest and pays the required $150.00 application charge, the administrative suspension will be "stayed" pending a judgment by an Administrate Law Judge. At the administrative hearing, although the motorist faces a 1 year suspension upon a refusal to send to the State Administered Chemical test, a skilled attorney might be able to negotiate a withdrawal of the DPS-1205 at the administrative (ALS) hearing. And, if successful in this settlement, the driver will remain in the very same position as if he/she had, in reality, sent to the chemical test (i.e., he/she may be entitled to a "limited authorization" to drive upon a conviction of DUI). For this reason, if the DPS-1205 is withdrawn at the administrative hearing, and based upon absence of evidence, the attorney has the ability to work out a decrease of the DUI charge down to "negligent driving", the result will be no license suspension and no DUI conviction.
Finally, each case stands on its own merits. A result of a case can not be ensured. No attorney-client relationship has been created as a result of this post, and no advice is provided, express or suggested, as to whether you ought to or should not decline to submit to the State Administered Chemical Test.
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