Frequently Asked Questions?

Table of Contents

  1. I refused to take the breath test.  Does that mean I am automatically guilty?
  2. Should I refuse to take a breath / blood test?
  3. Can I decline to perform the roadside field sobriety tests?
  4. Is the machine used to test my breath alcohol concentration accurate and reliable?
  5. Is it against the law to drink and drive?
  6. This is my first DWI offense.  Will I go to jail?

I refused to take the breath test.  Does that mean I am automatically guilty?

Absolutely not.  Although the fact that you refused to take the test will be admissible at trial, that simple fact alone is not sufficient to convict you.  The prosecution must still prove that you were intoxicated i.e. that you had lost the normal use of mental or physical faculties due to the introduction of alcohol or drugs into your body.

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Should I refuse to take a breath / blood test?

If you have any question in your mind as to whether you will pass or  fail, it is probably in your best interest to decline.  Remember, even if your consumption of alcohol has not resulted in the loss of the  normal use of your faculties, a test result in excess of the legal  limit is sufficient to convict you.  Submitting to the test, gives the prosecutor one more way to claim that you were intoxicated.  A practical consideration is that by the time the police officer requests a sample of your breath or blood you are already under arrest.  Even if you pass the test you will go to jail.  After all the police will not “un-arrest” you.  Instead, the State will say that because the test was taken some time after the time of driving your alcohol concentration at the time of driving was higher than at the time of the test and that you have simply had time to sober up. 

The State will also argue that even if your alcohol concentration was not above the legal limit, you had lost the normal use of your mental and physical faculties as the result of alcohol consumption.  When confronted with a request for a breath/blood/urine sample, you should ask the officer to allow you to contact an attorney for advice in making your decision.  The officer will probably tell you that you do not have the right to speak with an attorney at this point, but the average juror may view your request as reasonable. Moreover this saves you form having to flatly refuse the officer’s request.

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Can I decline to perform the roadside field sobriety tests?

Yes.  The office can not force you to do these tests.  However, at trial the prosecutor will argue that you refused because you knew you would fail.

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Is the machine used to test my breath alcohol concentration accurate and reliable?

It depends on who you believe.  What is undisputed is that the manufacturer does not warrant or guarantee that the Intoxilyzer is fit for its intended purpose of determining the alcohol concentration in a sample of human breath.  The machine is a self-checking piece of equipment and the machine’s operator will assume “all is well” unless the machine says it has a problem.  It is well-known among DWI attorneys that the machine will report proper functioning even in the face of having several of its key components disconnected.  Moreover, the computer program which performs the crucial calculations remains a secret.  

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Is it against the law to drink and drive?

While it is a crime to drive while intoxicated or to drink alcohol while driving, it is not against the law to drive after having a few drinks so long as the consumption of alcohol does not cause intoxication.  However, if you are stopped for any reason and the officer detects the odor of alcohol on your breath, it is likely that you will be arrested for driving while intoxicated.

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This is my first DWI offense.  Will I go to jail?

Provided your case is handled by a competent DWI attorney, and absent unusual circumstances, you should not have to spend any additional time in jail.  With proper representation you may receive community supervision (probation), you may be required to pay a fine, perform community service, submit to alcohol counseling, report to a probation officer and abide by additional terms of community supervision.