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Attempting to Give Breath Test May Help Avoid a DUI

June 28, 2011

Attempting to Give Breath Test May Help Avoid a DUI

Everyone has probably heard at one time or another that you should always refuse to give a breath test if you have been drinking alcohol. I don’t give the same advice. I simply tell my friends and family not to get behind the wheel of a car if they aren’t immediately prepared to get pulled over and take a breath test because if you aren’t prepared to take that test when you get in your car and you do get pulled over and the officer suspects you of drinking alcohol then you are going to go to jail after being charged with DUI and you are going to lose your license for refusing to give that breath test. Having refused the breath test may help the defensibility of their DUI charges if they really were drunk, but does anyone really want to be charged with DUI and have a better case to defend?
A recent client of mine is probably glad he attempted to give a breath sample. I represented a client at a jury trial last week where my client was arrested for DUI and the police officer requested that he submit to a breathalyzer test. The client agreed and attempted to blow into the breathalyzer as requested. The machine registered insufficient samples after each of his three attempts. The State of Tennessee ultimately charged the client with violation of the implied consent law as the State argued that my client’s attempts were insincere. The officer never requested that my client submit to a blood test.
The case was tried before a jury and the jury ultimately found my client not guilty of DUI. The state failed to preserve a copy of the booking room video that would have shown my client’s breathalyzer attempts. I strongly believe that my client’s testimony that he tried to give a breath sample saved him from being convicted of DUI and the jury was probably not pleased that the officer didn’t preserve the video. While we will never know what the results would have been, I can only assume that the jury was not satisfied that the State had proven their case given the fact that they could have requested a blood sample and my client testified that he tried to give the breath test as best he could.
If you are charged in Nashville or anywhere in Middle Tennessee with a DUI, contact a criminal defense attorney that has experience handling DUI cases. You may contact Vince Wyatt at 615.256.6666 or by email at