Should you take the breath test if you are stopped for drunk driving?

This holiday there will be a lot of people on the road. Some may be drinking.

This holiday there will be a lot of law enforcement officers on the road. They will be looking to arrest folks who are under the influence.

With certain exceptions most people under suspicion of driving under the influence will be given the option of taking  the breath test. What should you do?

If you do not take the test you could lose your license anyway under our “implied consent” law.  If you do not take the test the officer can still arrest you if the officer has probable cause to think you are under the influence.

If the officer can secure a search warrant the officer can compel you to take a blood test. This option is not always available since the magistrate  may not be immediately accessible.

My advice is to go on and take the test if you have been responsible enough to have consumed only a few beverages.

There are many factors which influence the test result such as body weight and how long it has been since you last had a drink.

A low number or one “on the edge” can be strong evidence that you are not guilty of driving under the influence. That evidence is not available if you refuse the test.

Some folks are afraid that the test is not accurate. That is a well-founded concern up to a point. There are certain margins of error which will occur but not enough to justify the refusal to take the test.

The officer should give you the option of a blood test if you are willing to pay for it. The blood test is, in my view, far more accurate than the breath testing machine.

There are some other considerations  that will influence if the officer will even request a test. These include how you react to the officer to begin with. Do not ask a lot of questions. You are there to answer questions not ask them. And do not say, “I only had two beers.” That is a sure sign of deception.

Be certain that you have your license and registration with you and that they are current.  Be sure you have current proof of insurance.

Be certain all your equipment is functioning on your vehicle. You do not want to be “rolling probable cause.”

Make sure you are functioning as well. Stay off the cell phone while driving. Don’t text and drive.

Taking  the test is usually the correct choice.

Not drinking and driving is an even better option. Be safe and have a good holiday.

David Raybin

ABOUT David Raybin
David Raybin

David Raybin is a partner at Raybin & Weissman and he heads up the criminal defense section of the firm. With more than 35 years of experience, David has been named the Best Criminal Lawyer in Nashville by Best Lawyers in America, and listed among the Best Criminal Lawyers in the state by Tennessee Business magazine.

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