If I am arrested on suspicion of DUI, should I take a breath test?

To take a test or not to take a test, that is the question! It is the source of many late night telephone calls. Ask 10 lawyers the same question and you may get 10 slightly different answers. The only correct answer is "it depends." There are so many fact specific scenarios that the subject can only be treated generally with some rules of thumb.

Implied Consent Law in Connecticut

In Connecticut there is an implied consent law. That means that if you choose to drive a vehicle in Connecticut and get pulled over you have agreed to take a chemical test of the officer's choosing if that stop results in an arrest for operating under the influence. The three types of tests are breath, urine and blood. The person arrested has no input into which test the police officer uses. It is the officers choice. The vast majority of cases involve breath tests so that is what we will discuss here.

Consequences of Refusing to Take a Chemical Test

If you refuse to take the test chosen by the officer then your right to drive in Connecticut will be suspended for a period of no less than 6 months without the ability to apply for a work/school permit for the first 90 days of that 6 month period. While there are worse things than getting your right to operate suspended it is a significant and costly consequence of your decision to refuse a test. The decision to take or refuse the test must be made almost immediately after you arrive back at the police department after being arrested and transported back to the station.

Consequences of Failing a Breath Test or Other Chemical Test

If you decide to take the breath test, and fail, and you have never had your license suspended for an alcohol related arrest in the past then you will lose your license for a maximum period of 120 days for a breath test .16 or higher and for a period of 90 days for result under .16. A result of .16 is twice the legal limit of .08. In either of those cases you will have the right to get a work or school travel permit from day 1 of the suspension unlike in the refusal scenario which has the 90 day waiting period.

What is the downside of taking the test? A failed breath test is a significant obstacle in fighting the operating under the influence (OUI) charge. There are two ways to be charged with OUI in Connecticut. The first is using the objective observations of the police officer such as erratic driving, odor of alcohol, bloodshot eyes, slurred speech, difficulty finding paperwork, unsteady on feet, failure to follow instructions, disoriented, and most importantly performance of standardized field sobriety tests such as horizontal gaze nystagmus (HGH), walk and turn and one-legged stand. The second is a failed chemical test. So, by taking and failing the test you make it much easier for the prosecutor to prove an OUI case against you. That is the downside.

Reasons to Take a Breath Test

Why would anyone take the test if it makes it easier for the prosecutor to prove the case? Because if the arrest is the first time you have been arrested for OUI, by taking the test, you limit the length of the suspension of your driver's license and preserve the ability to get a work/school permit without a waiting period. Further, if it is your first arrest you will be eligible for a diversionary program called the Alcohol Education Program (AEP). This means that if you complete this one year program the charges get dismissed and you will not have a a further license suspension as the result of a conviction.

Reasons to Avoid Taking a Breath Test

However, if you are not eligible for the AEP than you may not qualify for a work permit either if you have previously had your license suspended for an OUI charge in the past and will likely face an additional license suspension suspension of no less than one year in the future if you plead guilty to an OUI. Therefore, the benefits of taking the test for a person who will not be eligible for AEP drop significantly. Therefore, if this is not your first arrest for OUI refusing the test may be in your best interest in order to provide your attorney the best chance to fight the charge.

Are there times that even a first time offender should refuse to take the test? If you have been involved in an accident and there is the risk of that accident having resulted in serious injury or death to another person than you may not want to take the test as you may be charged with more serious offenses than OUI such as Assault in the 2nd degree with a motor vehicle or vehicular manslaughter.

In all of the above cases you know how much you have had to drink. Therefore, even in those cases where a refusal may seem the better course based upon your past history if you know you have not been drinking or have only had an amount to drink that would be unlikely to put you over the legal limit than you may still want to submit to the test.

Contact a Trusted Criminal Defense Attorney to Help You Make the Decision

The best advice is to keep the mobile telephone number or pager of a trusted criminal defense attorney in your wallet at all times. If you don't have the ability to contact your lawyer after hours than that person isn't much help to you as you are required to make real time decisions that cannot wait for him or her to get back to you the next day or even the next hour. Having my mobile phone on 24/7 may result in some lost sleep but preserving your freedom isn't a 9-5 job.