Legal Myths on Trial
Article Date: Friday, November 19, 2010
Written By: Lucy Austin
If a person is stopped for drunk driving and refuses to take a breathalyzer test, they can be arrested and/or have their license taken on the spot. At a traffic stop, a law enforcement officer will first ask standard questions, assessing the situation and determining whether to proceed with standardized field sobriety tests. In deciding whether there is probable cause for an arrest the officer will consider appearance, the odor of alcohol, admissions of drinking, and the results of the field tests.
The officer may ask the person to perform a portable breath test. The National Highway Traffic & Safety Administration makes it clear that this portable test is only for corroboration to help develop probable cause. If a person refuses to take the test, there are no sanctions. Still, there may be probable cause to arrest even without the test. Of course, if the person has not been drinking, the test may save the person from being arrested. If arrested, the suspect will then be handcuffed and taken to the police station for further testing.
At the police station, if you refuse to take the further tests, the DMV will revoke driving privileges, although there is a right to request a hearing from the DMV. If you do take the test, the results of that test can be used at trial.
Mixed Verdict. You can be arrested even if you don’t take the portable breath test roadside, as long as there is probable cause for the arrest. You cannot have your license taken roadside, but if arrested, you can lose your license at the station if you refuse to take the breath test there.
Chewing on a mint or pennies can affect the results of a breathalyzer test. Mints, pennies, and a host of other substances have been claimed to help affect the results of a breathalyzer test. History, however, has shown that none of these decrease the alcohol level picked up by the test.
False. There’s no fooling the test.
A person gets in a single car accident. When the police get there, the person has been drinking, but claims to have only started drinking after the accident. This has been popularized in film and television, including references in the movie “Michael Clayton” and an incident appearing on the “Real Housewives of New Jersey.” But would it really be a good defense? If the law enforcement officer cannot prove whether the person began drinking before or after the accident, this could be a very good defense. However, this only works if the person has left the vehicle before the officer gets there. If the person is drinking while in the car, they may still be guilty of driving under the influence, as case law says if the keys are in the ignition or if the driver is in control of the vehicle, they can be found guilty.
Possible defense after an accident. But if stopped for drunk driving, taking a drink at that point would be welcoming an arrest.
Special Thanks to Jesse Scharff of Roberts Law Group for his help in judging these myths.
Lucy Austin practices in Raleigh, North Carolina. Got a legal myth you’d like investigated? Contact Lucy Austin at email@example.com.
Views and opinions expressed in articles published herein are the authors' only and are not to be attributed to this newsletter, the section, or the NCBA unless expressly stated. Authors are responsible for the accuracy of all citations and quotations.