As a criminal defense attorney it is impossible to avoid being questioned about driving under the influence (DUI). DUI’s are unique in that the majority of those that commit the crime believe that they are in fact, not committing the crime. Very few of us carry a personal breathalyzer device or analyze the science of intoxication, rather, we use past experience and general knowledge in self-determining whether we are impaired or capable of driving home. Many people think they can have two beers at happy hour and be fine to drive home. But can they? What percent alcohol were those beers? How much have that person had to eat that day? Has he or she ingested any medication that may affect his or her level of impairment? Has anything else been ingested that may have some alcohol content?
When happy hour is done and one drives home only to find oneself being pulled over for a taillight that he or she has been meaning to replace or a registration tag that he or she has been putting off attaching until nicer weather arrives, one may begin to panic about those two beers. Should he or she perform field sobriety tests? Submit to the PBT? If arrested should he or she submit to the Datamaster test or demand a blood draw? How does the passage of time affect impairment?
FIELD SOBRIETY TESTS: Field sobriety tests are roadside tests that a driver is asked to perform to aid an officer with a suspicion that you may be impaired in order to establish probable cause that the crime of impaired driving has been committed. Probable cause of the crime being committed by the driver is needed to warrant an arrest. Several tests are common (horizontal gaze, one-leg stand, alphabet, etc.) and your performance may establish the requisite probable cause. Furthermore, failure on these tests can establish what is often referred to as ‘reasonable cause’ to request the driver to submit to a roadside PBT.
One thing that very few people understand is that it you are not required to submit to these tests! There is no penalty for not submitting to these tests and you will make your lawyer’s job easier (if you get arrested, and if it has come to the point where you have been asked to get out of the car you probably will be arrested regardless of your performance on these tests) in challenging the arrest if you do not perform. The officer will also have a more difficult job of showing that reasonable cause exists to ask you to perform the roadside PBT.
PBT: PBTs are an often unreliable handheld unit that generates an estimate of your blood alcohol content from your exhaled breath. The result are generally inadmissible at trial (though exceptions do exist) and are used to establish probable cause for your arrest.
Clients and friends often ask me if and when they should submit to this test. After all, they have heard that Michigan is an implied consent state and there are harsh penalties for refusing the PBT. This rumor is categorically false. The penalty for refusing a roadside PBT is a civil infraction with a fine of less than $200 that carries no points (no impact on your driving record). While harsher penalties exist for refusing the Datamaster test at the police station (more on this later) implied consent has nothing to do with roadside PBTs. For this reason, I almost always advise clients to refuse to submit to the PBT. This, again, makes the officer’s case in establishing probable cause to arrest difficult and easy to challenge if an arrest ensues.
DATAMASTER: The prior mentioned implied consent law kicks in after you have been arrested and you arrive at the police station. While the police have options on how to test you, by far the most common in Northern Michigan is the use of a Datamaster device. This device is a more sophisticated and controlled breathalyzer device and refusal to submit to testing will result in an automatic 1 year suspension of your driving privileges and 6 points will be added to your license. You can appeal this suspension but must do so within 14 days of Officer’s Report of Refusal to Submit to a Chemical Test (pay attention to this timeframe, it goes quickly!).
Datamaster results are admissible and are often the strongest point that the prosecution can make in convincing a jury that your driving ability was impaired. While a reading above .08 establishes only a presumption of impairment, this presumption is often difficult to overcome.
If you refuse to submit to the Datamaster test nonetheless, a warrant will likely be sought to have a blood draw performed at the hospital.
TIMING AND WHY ALL THIS MATTERS: You may be aware that as time passes from the last sip of alcohol, the amount of alcohol in your blood naturally decreases. You may also be aware that your body absorbs alcohol gradually and that the effects of drinking take time to be fully absorbed by your blood. For example, if one were to rapidly chug three beers and then submit to blood alcohol testing the results would go up at first (as the alcohol is absorbed), hit a peak, and then begin to decrease.
The presumption that somebody registering a blood alcohol level above .08 is impaired must take into account the time lapse from the time that the person was actually operating a motor vehicle. If someone finds him or herself on the downward slope because they know that they have not been drinking for some time, it may benefit them to refuse testing in the hopes that when the testing actually occurs, their levels have lowered to below the legal limit. On the other hand maybe you slammed your drink only minutes ago and may benefit from a quick PBT reading that your crafty defense attorney is able to get admitted at trial.
CONCLUSION: Drunk and impaired driving claims the lives of thousands of people every year and should be avoided at all costs. If you have been arrested for impaired driving in Northern Michigan you owe it to yourself and your future to seek out the best representation possible. You need an attorney that understands all aspects of DUI law and will fight to provide you every possible advantage as your case progresses. The effects of pleading to or being convicted of impaired driving can be devastating and change the course of your future. Give us a call today and let us see if we can help.
