Should I refuse the breath test?

The Preliminary Breath Test (PBT)

Now that can be a little bit confusing because in fact there are two different breath tests that are being offered to you. The first one’s called a PBT, or the preliminary breath test. Under no circumstances should you blow in that machine. That’s the one that’s being offered to you when you’re out in the field by your car. When the officer says, oh, this can’t be used against you at court, but if you blow a 0.0, I’ll let you go. First of all, that’s not true. I’ve had plenty of cases where clients have blown under a 0.08, they’ve blown a 0.05, 0.06, they still get arrested for a DUI.

I got news for you. Once an officer’s pulled you out of your car and put you through field sobriety tests, they’re arresting you for a DUI. That’s going to happen. The question is are you going to give them this last piece of evidence to really be able to put a nail on your coffin in terms of your case? The PBTs make it so much harder for DUI defense attorneys to win their cases. Doesn’t make it impossible, it just makes it that much harder. Because I have found that the majority of time, the officers mess up their field sobriety tests that they’re administering to the client. They make errors in there, which allows us to invalidate those tests.

How Police Testify About PBT

However, when the officer is able to say, well, the defendant blew into the PBT and based upon the reading of that PBT, your honor, I made the decision to place him under arrest. That’s how they get around the rules. They’re not allowed to say they blew a 0.11 or they blew a 0.14. They can’t say what the reading is, but they could say based upon that reading, they made the decision to arrest you, and that’s allowed to go forward.

Now, of course, your defense attorney should object to that, but usually the judges allow that to come in. So you should never ever blow in a PBT out by the field. There is no negative consequence to it. The officer is just going to say well, I’m going to arrest you if you don’t. As we’ve discussed, they’re going to arrest you anyway. So it’s not really a negative consequence of not blowing into the PBT. It’s just negative consequence of the fact the officer pulled you over and thinks you’re drunk.

The BAC Test (Intox EC/IR II machine)

The other breath test  you will be offered is the actual BAC machine back at the police station. That’s measuring your Blood Alcohol Content. Here in Virginia, it’s the Intox EC/IR II. When conducting this test, they actually have to monitor you for 20 minutes to see if you belch, burp or vomit prior to giving a sample. They reason why they have to monitor you for 20 minutes is any residual alcohol in your mouth should have been burnt off by your saliva or other enzymes in your mouth by that point. By that point, if you burp or belch or vomit, then your brain alcohol and other contaminants from your stomach up into your mouth again, which can give false positives on the test. That’s why we’re supposed to ask that question. If they don’t, you should make a note of that. If they do and you tell them there’s happened, they’re supposed to reset the clock for an additional 20 minutes. That’s why there’s always supposed to be an officer in there with you monitoring whether or not that’s actually happened.

DUI Refusal Charge

If you do not provide a BAC sample at the police station, you can be charged with refusal. Now, refusal is actually a civil penalty if you’ve never been charged with a DUI or convicted of a DUI previously. What it is, it’s one year loss of your license. I mean, it sucks. It’s not fun to lose your license like that. But it’s also, some people will say it’s better than having a DUI. In terms of the refusal, just because you’re charged with it, again, doesn’t mean that they’re actually going to convict you of it. They’re still going to try to go forward with the DUI conviction even without the BAC sample.

BAC Admitted As Evidence

Now, the reason why the BAC sample is allowed as evidence instead of, or over the PBT, is because with the BAC, that machine, the ECIR, that should be monitored by the forensic labs of Virginia. They maintain it, they keep it up to date to make sure they’re acting properly. That’s why that meets that scientific standard of being allowed to come in as a test. Whereas the PBTs just don’t meet the scientific standard. That’s why those ratings are not allowed to come in.

Call Johnson Law Firm For Your DUI Case

So if you have been charged, or if you’re facing the issue of a refusal, it’s a personal decision whether or not you actually blow at the station. You are required by law to provide a sample. If you do provide a sample and it’s an insufficient sample, if you have a medical reason for that, we have a lot of clients that have COPD or have other issues, or have severe cases of asthma, which make it difficult for them to blow hard enough into the machine, there is the option of a blood test. And sometimes the officers will ask you for that.

Now, they specifically have to ask you when you get to the station are you going to provide a sample? If you say no, they have to read you the implied consent law. They’re not allowed to just charge you with refusal and say well, they told me in the car they weren’t going to provide a sample. They have to read that implied consent law to you after you’ve indicated that you’re not going to provide the sample. That way they’re making you aware of the fact you do in fact have to provide that sample. If they didn’t do that, make sure, of course, you tell your attorney that.

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