Are There Any Advantages to Refusing the Field Tests or Breathalyzer

The license loss for a chemical test refusal varies based upon the client’s prior criminal history of operating under the influence cases but is at least one-hundred-and-eighty-days. The prior history considered will include both cases that were continued without a finding and those that resulted in a finding of guilty. There is a lifetime look back in evaluating whether the operator is a multiple offender. For someone over twenty-one, the length of the license suspension ranges from one hundred and eighty days to life as follows:

• No prior offenses: one-hundred-and-eighty-days
• One prior offense (guilty plea or conviction): three years
• Two prior offenses (guilty plea or conviction): five years
• Three or more prior offenses (guilty plea or conviction): lifetime suspension

For someone under twenty-one, the length of license suspension ranges from three years to life as follows:

• No prior offenses: three years
• One prior offense (guilty plea or conviction): three years
• Two prior offenses (guilty plea or conviction): five years
• Three or more prior offenses (guilty plea or conviction): lifetime suspension

If you consent to the breathalyzer test and you have a blood alcohol content of .08% or greater, this is considered a “per se” violation. If you are over twenty-one, a per se violation results in a license suspension of either thirty days or until the case is disposed of (whether by plea, trial, or dismissal), whichever is a shorter time period. License suspensions related to chemical test results for a person under twenty-one need to be separated into two categories, those relating to a reading of .02 and those relating to a reading of above and .08 and above. License suspensions related to chemical test results for those under twenty-one also depend on whether the person is under eighteen or between eighteen and twenty-one.

If you are under eighteen and blow between .02 and .06, your license will be suspended for one year under the Youth Alcohol Program. If you are under eighteen and blow over .08, your license will be suspended for the standard thirty days, plus an additional one year under the Youth Alcohol Program. If you are between eighteen and twenty-one and blow between .02 and .06, your license will be suspended for 180 days under the Youth Alcohol Program. If you are between eighteen and twenty-one and blow over .08, your license will be suspended for thirty days plus an additional 180 days under the Youth Alcohol Program. If this is your first time getting arrested or charged for driving under the influence, then it is possible to have the additional 180-day Youth Alcohol Program suspension waived if the driver enrolls in a juvenile alcohol program. If the driver is less than 18 and it is their first drunk driving offense, the 360-day suspension can be reduced to 180 days if they enroll in the program.

While the calculation with regard to taking versus refusing field sobriety tests is slightly less black-and-white than the 30-day-versus-180-day suspension with the breathalyzer, the end result is still the same: it will almost always be in the defendant’s best interest to refuse to consent to any field tests. Field sobriety tests are much more subjective than a blood alcohol content test: whether or not you pass or fail the test is based on the perceptions of the officer with regard to your level of intoxication (based of course on standard signs of impairment). Given the subjective nature of the test, there is essentially no benefit to taking a field test. You can almost never “pass”: if the police suspect you enough to pull you over and request that you complete a field test, they will likely arrest you afterward—based on their belief that it is more likely than not that a crime has been committed—regardless of how you do on the field tests (because they can always argue that to them, you seemed intoxicated).

Even if you are not intoxicated, it is certainly possible to “fail” a field sobriety test due to illness, fatigue, or nervousness. Consenting to field sobriety tests only gives the prosecution more rope to form the noose to hang you with. Refusing will likely result in your arrest—the Fifth Amendment principle that a defendant’s silence cannot be held against them does not apply in this context; the police can use your refusal to answer questions or consent to tests against you in their probable cause determination—but the police will have very little evidence to proceed to trial with and will likely ultimately struggle to convince a jury beyond a reasonable doubt that you were operating a vehicle on a public way under the influence of alcohol because the Fifth Amendment protection does apply at trial, meaning the police cannot introduce evidence of your failure to consent to tests at trial.

The reason it is crucial to thoughtfully invoke your right to refuse to consent to field, breath, and blood tests is that if you do so, the prosecution’s entire case against you comes down only to any 911 calls, the observations of the officer with whom you dealt during the stop and initial interaction in terms of any erratic driving they witnessed, slurred speech, the odor of alcohol, red or glassy eyes, etc., and the testimony of any other witnesses. While there may still be problematic evidence against you from such sources, you will almost certainly be better off than if the prosecution had additional evidence from the field tests or breath or blood tests. If the police have no evidence of the field tests or of a breath or blood tests, the entire case often comes down to the brief interaction with the police officer when you were pulled over and –hopefully—asserted your fifth amendment right to silence and respectfully informed the police officer that you would respectfully not be consenting to any tests and that you would be refusing the breathalyzer. It is often prudent to invoke your Fifth Amendment right to silence and to avoid giving the officer any additional information and making the prosecution’s burden any easier than it has to be. Even though such a refusal will result in an immediate suspension of your license, without evidence of a defendant’s blood alcohol content or observations regarding the field tests, the prosecution’s path to obtaining a conviction becomes much more difficult.

While refusing the field sobriety tests and/or the breathalyzer when suspected of operating under the influence will result in a longer immediate penalty (a 180-day suspension compared with only a thirty-day suspension for a per se violation), the police will have a much harder time proving you were operating under the influence and obtaining a conviction in the long-run. If there is no evidence of your impairment as evidenced by the competition (or failure) of the field sobriety tests or a per se breathalyzer violation, the prosecution’s entire case against you will be based only on any visual or otherwise discernable signs of impairment like erratic driving, slurred speech, or the smell of alcohol during the events leading to a stop by the police and their initial interaction and questioning. This can often be a very minimal evidentiary record meaning that the prosecution does not have much evidence to work with to obtain a conviction. This dramatically increases your chances of ultimately obtaining a favorable disposition—even if it means being without a license for an immediate period of time—because the prosecution will have such little evidence to prove to a jury beyond a reasonable doubt that you were operating a motor vehicle on a public way under the influence of alcohol.

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Refusing any field or breathalyzer tests is the first smart step in obtaining a favorable outcome in your case. The next smart step is to contact experienced criminal defense attorney Nate Amendola to make sure that your case is favorably disposed of. An experienced defense attorney can analyze the events leading to your criminal charges to determine if any evidence can be suppressed or excluded, further limiting the ability of the prosecution to obtain a conviction.

If you’ve been arrested on an OUI/DUI charge, domestic violence, disorderly conduct, or drug possession, you should speak to an experienced defense attorney as soon as possible. You can contact us online or call our office directly at 781-740-0800 to schedule your free consultation with one of our top-notch defense lawyers. We have been proudly servicing clients throughout Norwell, Massachusetts, and surrounding areas such as Plymouth, Barnstable, Nantucket, and more.