Declining a sobriety or breathalyzer test
Tracy P. Jong
If you are pulled over and have had a drink, should you submit to the police officer’s request for a field sobriety test? It is important to understand that if you refuse a sobriety or breathalyzer test, you will definitely lose your license for one year no matter how the case comes out – even if you were not intoxicated. You have the right to refuse the field test (“walk the imaginary line, one foot in front of the other”). If you were not drinking, you probably will want to submit to the test.
However, if you are pulled over and feel you may be intoxicated or had more than one drink, regardless of what you think a breath test would result in, our office recommends that you respectfully decline all sobriety tests requested by the police: "Officer, I understand that you are doing your job, but I respectfully decline to submit to any tests and would like to call my attorney." This gives the prosecuting DA limited evidence to work with if there is not a breath test or any field sobriety tests. It is important to be cooperative and not antagonize the officer. You do not want a resisting arrest charge to add to your troubles.
In situations where you have been drinking, declining a sobriety or breathalyzer test and succumbing to a one-year suspended license may be a safer bet than risking a DUI charge should tests confirm your intoxication.
Please be aware that if you decline a field sobriety test, the officer is probably going to make the arrest anyway if he or she smells alcohol and asks you to step out of the car. If there is an accident with serious physical injury or, god forbid, a fatality, then the police will draw blood pursuant to the law and the driver will not have any choice whether to participate.
If you took a field sobriety test and are being asked by the police to submit to a breathalyzer, you probably want to call your attorney. Your attorney may wish to be present to be sure the test is conducted properly. When you call the attorney, keep in mind that if you are calling from the police/sheriff's/trooper’s office, the call is a privileged attorney-client communication and they (the police) can't record or listen to it. However, also be practical; they probably are listening to what you say at your end. In order for your attorney to advise you whether to submit to a breathalyzer or to demand a blood test, be prepared to tell your attorney (preferably in a manner so the officer does not understand the conversation):
- how many drinks you've had in the last three hours and whether it was beer, wine or hard liquor
- how long since your last drink
- your weight
- how many hours since eating and what you did eat
- how long since you last slept
- whether you passed or failed the field test
- whether you are taking ANY medication or drugs (prescribed or otherwise)
- whether you have any priors
If you are a manager of a licensed premises or have an alcohol beverage license of any type, you may be required to immediately notify the zone office of the arrest and pending charges. Our office strongly suggests you consult with an experienced attorney in SLA matters when this situation arises.
Address:
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Tracy Jong Law Firm
2300 Buffalo Road, Building 100A,
Rochester, NY 14624
Telephone:
(585) 247-9170
Fascimile:
(585) 247-9171