The most often asked question of a criminal defense and DUI attorney is “Should I blow if a breathalyzer is requested?” This occurs after a person has been arrested for suspected DUI, DWI or OVI. While some attorneys advise to always refuse a breathalyzer if you have had anything to drink, I do not agree that the answer is that simple.
One problem is that if you refuse to take the breathalyzer, the prosecution can have your license suspended for up to 120 days, regardless of whether you are convicted or acquitted of the underlying DUI. This is an administrative suspension based solely on the refusal of the breathalyzer or other alcohol test. Another consideration is that the refusal can be used against you in a trial of the action as indicia of impairment.
If a driver has actually consumed one or two alcoholic beverages, the breathalyzer may actually benefit him/her in proving that the alcohol concentration was under the legal limit. There are complex formulas to determine what a blood alcohol level may be and they are based on the person’s sex, weight, amount of alcohol consumed and length of time during consumption. The following link is interesting and fairly accurate in predicting what a blood alcohol level may be. Additionally, the food that the person has ingested will affect the blood alcohol level.
The defendant should also be aware that if you blow over a .15, then the case is considered aggravated, which mandates jail time even for a first offense. A refusal is considered an aggravator for second or subsequent offenses, but not for first offense DUI. Therefore, if a driver has consumed large amounts of alcohol and does not have a prior DUI conviction, it is suggested to refuse the breathalyzer.
The police in Kentucky may request either a breath test, blood test or urine test. The breathalyzer is requested most often because of its ease of use, time required to take the test and number of people necessary to have the results entered as evidence in a trial. The police will generally only request a blood test if the driver is suspected of using other drugs or a combination of drugs and alcohol. Defendants should be aware that they have the right to a second test of their choosing once they submit to the test requested by the police officer. I often suggest that if you blow over the limit on a breathalyzer to request a blood test be taken. This is at your expense and is generally done at a local hospital.
If you have been arrested and charged with DUI, you should contact an attorney before next appearing in court. Whether you have submitted to a breathalyzer or refused to consent to a breathalyzer, an attorney can assist you through the legal process. In certain cases, a defendant can be acquitted regardless of the breathalyzer result or the refusal. If you have questions or concerns, contact Michael Bouldin for a consultation at 859-581-6453 (581-MIKE) or email at firstname.lastname@example.org .
While I practice in both Ohio and Kentucky, the advice herein is intended for Kentucky. The refusal in Ohio will subject the driver to immediate suspension, and taking, of the drivers license. Also, the legal limit for the high tier aggravator in Ohio is .170, not .150.