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DUI Arrest: Should I Take a DUI Breath Test?

Whether or not to take a DUI breath test? It’s a common question with a complicated answer. To be clear, there are two different things that might be referred to as a “DUI breath test.” First, there is a small handheld device that an officer might offer on the side of the road. This is called the Portable Breath Test or PBT. Taking this test is entirely voluntary, and you are not required to take it at all. The PBT result cannot be used as evidence at a trial, and is largely just used to support the officer’s decision to make the DUI arrest.

In general, we as DUI defense lawyers usually recommend that people DO NOT take the PBT. There is little reason to volunteer for this test, and by taking it you are likely volunteering further evidence to be used to support your arrest. There is simply little benefit to taking the Portable Breath Test.

Next, is what is called the BAC DUI Breath Test. This is something you would take at a police station or jail after you have been arrested. This test is done on a larger, table-top machine called a Datamaster or a Draeger breathalyzer machine.

Participation in this evidentiary test is “semi-voluntary.” By this, we mean that you can choose to refuse to take this test, but there are some important civil penalties you will face for doing so. Basically, if you refuse to take the a post-arrest DUI breath test, you can have your license revoked for a minimum of one year, and you can face additional punishments if you are later convicted in court of a refusal-DUI.

Another ramification is that the act that you refused to take the DUI breath test can and often is, used as evidence against you at a trial. In other words, the prosecutor can argue to a jury that you likely refused to take the breath test because you knew you were going to fail, which is called “consciousness of guilt” evidence. Also, DUI refusal cases are often harder to plea bargain down to lesser offenses like Negligent or Reckless Driving. Prosecutors tend to treat BAC test refusals as grounds for towing the line on DUIs. For all of these reasons, we typically recommend that people take the BAC Breath Test.

Whenever you have been arrested for a DUI, you should ask to speak to a lawyer before deciding to submit to or refuse to take a breath test. Under state law, the arresting officer has to make a reasonable effort to connect you with a live lawyer that you can seek legal advice from any time, day or night. In most counties, this means the public defender who is on call is contacted, and you are given a period to talk to them about your case. If you have a specific lawyer in mind that you want to speak to, the arresting officer has to allow you a reasonable opportunity to make contact with that lawyer.

If you are facing DUI/DWI charge, it is very important that you receive the best legal defense possible. The law firm of Lustick, Kaiman & Madrone has over 50 years of combined service to the community in defending DUI/DWI cases. Our legal team believes that all citizens accused of any crime are presumed innocent until proven guilty in a court of law. We extend high quality and professional legal defense services to anyone accused of a wide array of criminal offenses, including all felonies, DUI/DWI, domestic violence charges, and all misdemeanors. Our normal coverage territories include Whatcom County, San Juan County, and Skagit County.

We offer a free one-hour consultation for criminal offenses and one of our lawyers will appear for free at your first court hearing. Please call (360) 685-4221 to schedule a meeting with one of our defense team members.

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