Refusing a Breathalyzer in Birmingham DUI Investigation

Tags: Criminal Defense, DUI

When former Cleveland Browns quarterback Bernie Kosar was pulled over late last month on suspicion of DUI, he declined to take a breathalyzer test, adding that he had been advised never to take one.


Our Birmingham DUI defense lawyers would never say “never.” Certainly, there are instances when taking one can be the better option. However, those primarily involve situations in which the driver hasnot been drinking – or his or her alcohol intake is minimal.

For example, if you recently smoked marijuana, but haven’t consumed any alcohol, you might be better off to take the breathalyzer test, which will prove you aren’t under the influence of alcohol. (Just make sure in this scenario you don’t offer up the information to the officer that you’ve been smoking pot instead.)

Or let’s say you honestly had no more than a single glass of wine with dinner. A breathalyzer test should reveal that you are not intoxicated.

So we can’t say “never” take a breathalyzer, especially when you consider that in Alabama, we have something called “implied consent.” Basically what that means is that if you are behind the wheel of a motor vehicle in this state, it is implied that you will consent to a breathalyzer test if one is requested of you by a police officer. A failure to comply with such a request will result in penalties. Among those, you will lose your license for a year and be fined anywhere from $600 to $2,100, just depending on your prior criminal record.

However, this must be weighed with the consequences you’re going to face if you are convicted of a DUI. Almost assuredly, a DUI conviction is going to mean a loss of your license anyway. It will mean thousands of dollars in fines and a permanent conviction on your record that will be accessible to future employers, schools, housing authorities, etc.

The thing with breathalyzers is that they help to bolster the prosecution’s case against you, strengthening the odds of a conviction. Without a breathalyzer test result, prosecutors can still secure a conviction – but it will be tougher.

They will have to rely more heavily on other pieces of evidence, which may not be as strong. Those include field sobriety tests and officer observations. Those can still be powerful, but they aren’t scientific, and science is often what sways a jury one way or another.

In more serious cases (ie, felony DUIs), officers will sometimes seek a blood sample to be withdrawn against your will. A recent U.S. Supreme Court ruling determined this can’t be done without a warrant, but that is not a particularly difficult or long process in this digital age.

It’s estimated that about half of all those pulled over for DUI refuse to take a breathalyzer test. What we find especially troubling is that far fewer drivers refuse field sobriety tests. As mentioned earlier, these aren’t considered scientific, but they can be harmful during trial. What’s more, there is no penalty for refusing field sobriety tests. Doing so may not save you from a DUI arrest, but it could help improve your chances of a win in court.


Additional Resources:
Bernie Kosar, like other OVI suspects, may have refused breath-alcohol test knowing it’s strong evidence in court, Oct. 8, 2013, By Patrick Cooley, Northeast Ohio Media Group
More Blog Entries:
Alabama Commercial DUI Can Result in Major Consequences, Sept. 25, 2013, Birmingham DUI Lawyer Blog

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