| It's late, you've had a few drinks and you get pulled | | | | time and the installation of an Ignition Interlock Device. |
| over driving. The highway patrol officer presents a | | | | This could also doom the appeal of his first conviction, |
| Breathalyzer device. It is within your rights and might be | | | | which he had hired a private attorney to work on. |
| in your best interest to refuse and opt for a blood test. | | | | The police officer asked Bruce to step out of his car |
| For various reasons, roadside breath tests are | | | | and undergo a Field Sobriety Test. Bruce refused, |
| sometimes inaccurate. Among other factors, the | | | | having heard from his San Jose DUI attorney that one |
| Breathalyzer units can be calibrated incorrectly and the | | | | in four innocent people may fail these tests, as some |
| police officers that handle them are not always | | | | of the physical tasks demanded, such as walking |
| certified to do so. While it's not well known and police | | | | heel-to-toe in a straight line or holding one's arms out |
| generally don't advertise it, no driver is required to take | | | | while standing still, can be difficult even for people who |
| a breath test if asked. | | | | haven't been drinking. The officer then asked Bruce if |
| Granted, refusing one can be grounds for being taken | | | | he would submit to a Breathalyzer test. Bruce refused |
| automatically into police custody and in some states | | | | this too, remembering what he'd heard from his lawyer |
| can be presented to a jury. Still, certain drivers, including | | | | about the inaccuracies of the devices. |
| those with a DUI conviction already on their record, | | | | He knew that refusing a Field Sobriety Test was |
| may have little to lose and plenty to gain by asserting | | | | grounds for an automatic arrest but that with a |
| this right. | | | | second DUI in question, he had nothing to lose and |
| Consider a hypothetical example of a man we'll call | | | | everything to gain. He knew his best bet to go home |
| Bruce: | | | | free that night was with a blood test at the police |
| Bruce received a misdemeanor conviction for driving | | | | station. |
| under the influence after taking a plea bargain on | | | | The officer took Bruce into custody and drove to a |
| advice of a public defender; his Blood Alcohol Content | | | | local CHP office. Bruce's attorney met him upon arrival |
| (BAC) reading from a roadside Breathalyzer test had | | | | at the police station. On advice of counsel, Bruce |
| registered just over the legal limit in California of 0.08 | | | | refused to undergo a police interrogation and agreed |
| percent. | | | | to have blood drawn for a test of his BAC. By now, it |
| Bruce had been prosecuted in one of the stricter | | | | had been more than two hours since his last drink, and |
| counties in the San Francisco Bay Area. In the back of | | | | Bruce was reasonably certain his blood content would |
| his mind, he always wondered if he had really been | | | | be under the legal limit. He also knew that if the reading |
| legally drunk the night of his first arrest. Thus, when the | | | | was over the legal limit, his attorney might be able to |
| highway patrolmen approached his car with his | | | | argue that the blood vial showed fermentation, a |
| Breathalyzer unit in hand, Bruce was ready this time | | | | defense often successfully used against a drunk |
| around. | | | | driving charge. |
| The officer asked for a copy of Bruce's California | | | | As it turned out, the reading came back as 0.07 and |
| Driver License and whether or not he had been | | | | Bruce was free to go home. Six months later, his |
| drinking. Bruce replied that he had. Earlier, Bruce had | | | | attorney got his first DUI conviction thrown out on |
| consumed three Coronas and a shot of Tequila dinner | | | | grounds of police misconduct and had his arrest |
| with coworkers | | | | expunged from his record. |
| At the time of the stop, Bruce was on his way home. | | | | Again, this is just a hypothetical example. However, if |
| He knew that at 6-feet tall and 180 pounds, his BAC | | | | you have been arrested for or charged with driving |
| would be close to the legal limit, and he didn't want to | | | | under the influence, a good lawyer can provide |
| risk an inaccurate reading leading to a second DUI | | | | expertise that might lead to a similar outcome. |
| conviction, which calls for stricter penalties, more jail | | | | |