Do I Have to Submit to a Chemical Test after a DUI Arrest?

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 What Happens When I Am Pulled Over for a DUI?

If a person is pulled over on suspicion of driving under the influence of alcohol or drugs, (DUI/DWI), the officer may ask them to submit to a field sobriety test. A field sobriety test involves a handheld breathalyzer test of the person’s blood alcohol concentration (BAC) as well as a number of other tasks.

The other parts of a field sobriety test are as follows:

  • The Horizontal Gaze Nystagmus (HGN) Test: In this test, the person must follow a police officer’s finger with their eyes;
  • The One Leg Stand Test: In this test, a person must stand on one foot for a time; and
  • The Walk and Turn Test: In the walk and turn test, the person must make nine heel-to-toe steps along a straight line. At the end of the line, the person must turn on one foot only and take nine heel-to-toe steps back in the opposite direction.

No law in any state requires a person to submit to a field sobriety test. For example, Texas law does not require a person to submit to a field sobriety test when stopped by an officer who suspects that the person is driving while intoxicated (DWI). In Texas, a driver has the right to refuse this assessment. This is true in all other states as well.

Should I Take the Tests Even If I Do Not Have To?

Reportedly the National Highway Traffic Safety Administration (NHTSA) has conducted research that shows that these tests do not measure a person’s ability to drive safely. If a competent police officer administers the test correctly, the most the results can show is that a person consumed some alcohol. The test does not necessarily indicate that the person is not fit to drive or how much alcohol they may have consumed if they have been drinking alcohol or using drugs.

On the other hand, the NHTSA reports that research studies show the HGN test to be correct for 88% of the individuals who are intoxicated when they fail it. The walk-and-turn test correctly reveals the intoxication of 79% of the people who take it. The one-leg stand test correctly shows the intoxication of 83% of people who take it. A person who fails all three is probably intoxicated. This research is why the results of the tests are allowed to be used as evidence in a criminal trial.

Still, no law in any state requires a person to submit to a field sobriety test. Unless a person knows that they have not ingested alcohol or drugs in any amount, the test results probably will not help them avoid arrest or conviction at trial.

The critical factor to remember is whether a person is charged and convicted for DUI depends entirely on whether the prosecution has enough evidence to prove that a person was driving under the influence.

Not having a chemical test does deprive the state of one type of evidence but does not guarantee that the person will not be found guilty. The prosecution is likely to have other evidence that the person was intoxicated.

On the other hand, if a person believes they could complete the test successfully and do so, this evidence might help them avoid arrest or conviction if there should be a trial.

Evidence that a person is intoxicated can include illegal driving activity. For example, the person’s car may have been wandering in the travel lane. The person’s behavior and appearance may indicate intoxication. Their speech may be slurred, their face flushed, and their eyes bloodshot. There may be an odor of alcohol on their breath, and they may walk with an unsteady gait. The person might make incriminating statements to the office. The officer who makes the stop could testify to these things at trial.

So, if a person appears intoxicated, acts intoxicated, and says they may be intoxicated, the prosecution may use these facts to win a guilty verdict. And this may be possible, even if the prosecution does not have chemical evidence.

Can I Still Be Arrested If I Do Not Take the Tests?

Officers can arrest a person who has refused to take field sobriety tests, but they would do so because they already believed that they had reason to stop the person for drunk driving, e.g., they were driving erratically. And then, they can argue that the refusal to take the tests indicates guilt.

However, the fact remains that at least at the time of arrest, the office has less evidence against the person than they might have if they had taken the tests and failed them.

It is also important to recognize that some people may have trouble with the test even if they are completely sober. Supposedly about 25% of the sober people who take them fail some of the tests. Among the people who can have trouble with the tests are those who are overweight, over 65, or have knee or back problems that might affect their balance. And the stress of the situation, being stopped by law enforcement, possibly at night, and having to perform the tests at the side of the road, can affect a person’s performance.

In the end, if a person is confident that they are sober and a police officer arrests them anyways, they can take a more reliable breath, blood, or urine test at that time. The results of this test should prove more helpful.

If the police have probable cause to arrest a person for drunk driving, they will be asked to submit to a blood, breath, or urine test to determine their BAC after arrest. The results of this test can be used against the person at their trial on the charge of DUI.

Can I Refuse to Submit to a Chemical Test After I Am Arrested?

If a person has been arrested, they can refuse to take a chemical test of their BAC. However, refusing a test after an arrest can have serious consequences.

Under the laws in most states, a person’s driver’s license can be suspended for refusing to submit to chemical testing after an arrest for DUI. People should know when they have been arrested because the officer who arrests them will tell them that they are under arrest.

Under California’s implied consent law, for example, a person’s driver’s license can be suspended for at least 1 year. This law provides that a person consent to having their breath or blood tested after being arrested for DUI because driving a motor vehicle implies a person’s consent to the test. Other states have implied consent laws as well.

In addition, if the driver has prior DUI convictions, the refusal to take a chemical test after an arrest can lead to a longer suspension of the person’s driver’s license. Further, a BAC test refusal can enhance the punishment imposed for the DUI conviction if the person is later convicted at a trial. A penalty enhancement means that a judge can impose a harsher sentence than the standard sentence for DUI.

For example, a person might have to serve longer in jail. This is true in California, for example, with a long list of enhancements for a DUI sentence, including the refusal to take a chemical test after an arrest for a DUI.

In some states, if a person has a trial of their DUI charge, the person’s refusal to take a chemical test after an arrest can be used as evidence of their guilt.

Another issue to keep in mind is that dealing with a state’s Department of Motor Vehicles can be even more complicated than dealing with the criminal justice system. This is true even if a person is eventually found not guilty of the DUI for which they were arrested in the first place. In other words, avoiding suspension of a person’s driver’s license if they are found not guilty of DUI can be challenging.
Also, if a person’s case does go to trial, the prosecutor may be able to tell the jury that they refused to take a chemical test as part of the prosecutor’s effort to persuade the jury of the person’s guilt.

Should I Seek Legal Help?

If you have been arrested for a DUI, you must consult an experienced DUI/DWI lawyer immediately. In some states, you can talk to your lawyer before your chemical test and receive advice on how to proceed.

However, other states do not allow you to consult with your lawyer until you submit or refuse to submit to a chemical test. Regardless of where you live, you should ask to speak to an attorney as soon as you are arrested to protect your rights.


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