Posted in Criminal Law on September 4, 2013
The short answer is yes. A frequent misconception is that refusing to take a breathalyzer will prevent the police or law enforcement from arresting you for DUI, or alternatively, prevent the district attorney’s office from charging you with a DUI. Not only can the police arrest you without results from a breathalyzer, refusing the test does not limit or prevent the district attorney from pressing charges for DUI.
If refusing the breathalyzer won’t prevent an arrest or subsequent charges from being filed, should you ever refuse the test? The answer to that question is more complicated, and will depend on a host of factors– but know this beforehand- the simple act of refusal, by itself, carries substantial consequences.
Under Oklahoma’s implied consent law, drivers consent to breath-testing in return for the privilege of having a driver’s license and the ability to lawfully drive in the state. This means the state is free to regulate the privilege of driving, and it may enact a host of conditions and rules that driver’s must obey in order to continue to drive. One of those conditions is the implied consent law. If a driver refuses to take a breath-test, the state may lawfully revoke that person’s driver’s license under certain conditions. According to the statute:
Any person who operates a motor vehicle upon the public roads, highways, streets, turnpikes or other public place or upon any private road, street, alley or lane which provides access to one or more single or multi-family dwellings within this state shall be deemed to have given consent to a test or tests of such person’s blood or breath, for the purpose of determining the alcohol concentration
See 47 O.S. Sec. 751.
If a driver has no prior convictions, refusing a breathalyzer will likely result in the suspension of a driver’s license for a period of one-hundred eighty (180) days, unless it can be shown that the police officer lacked probable cause to stop the driver in the first instance. Generally speaking, this is difficult hurdle since law enforcement may lawfully stop any person for committing any traffic offense, mechanical problem, e.g. no tail light, or an administrative issue, e.g. expired tag. Anyone with a driver’s license knows that it is virtually impossible to drive more than a few miles without committing some traffic violation. This construction of the law greatly facilitates the ability of law enforcement to articulate probable cause to initiate a traffic stop.
So, under what circumstances would refusing a breathalyzer be a wise decision? Again, this is a very fact-specific question, but the simple answer is when the consequences of refusal do not exceed the potential civil and criminal penalties. The answer to this question is highly subjective, and depends entirely on the individual. If someone relies almost exclusively on public transportation, and couldn’t care less about having a driver’s license, it may be in that person’s best interest to refuse a breathalyzer. Similarly, a person who is extremely intoxicated with multiple prior convictions for DUI may benefit from not providing a breath sample, especially where the BAC level may exceed the threshold for aggravated DUI (0.15%).
In sum, if you have questions about DUI, or if you are presently facing DUI charges and have questions about your options, contact the injury attorneys at Bryan & Terrill Law, 918-935-2777.