The police officer begins evaluating your behavior the second the blue and red lights come on (if not before then). Although you are going to feel nervous, it is important to keep your composure. The officer is trained in evaluating your physical demeanor and any movements suggesting intoxication. Police officers often test your ability to answer questions as you are nervously trying to find your registration and insurance cards in the glove compartment.
Do not volunteer any incriminating information! The officer has a microphone on and anything you say is being recorded. All along the way, the officer is gaining information to have enough probable cause to arrest you. Do NOT state that you ONLY had two beers. Do NOT admit consumption regardless of the amount. The statement does not help you, it is only added as one of the factors toward probable cause.
Do NOT submit to any roadside exercises. These test are completely optional. There many studies that suggest that it is hard to pass these test even for a sober person. Standing on a side of the road with loud cars, lights, and onlookers are not ideal surroundings to test your physical abilities. If you do not submit to the roadside exercises, the police officer can only base their determination of whether they have probable cause to arrest you based on the observations that they have made up until that point. This is why it is important to keep your composure and not provide any reasons to justify probable cause to arrest. It goes without saying that you should eliminate any odor of alcohol and open containers from the car prior to getting in the vehicle.
The police officer may also ask you to submit to a “Preliminary Alcohol Screening” or PAS test. This test is administered roadside using a handheld breathalyzer device, which shows the taker’s blood alcohol level (BAC). As with all roadside tests, an adult suspect can refuse to take this test. Many people believe roadside devices are unreliable indicators of intoxication. If you decline to submit to a roadside test in California, the officer will read you the following Implied Consent Instruction:
“If you fail to submit to the test I have requested of you, your privilege to operate a motor vehicle will be suspended for a period of one (1) year for a first refusal, or eighteen (18) months if your privilege has been previously suspended as a result of a refusal to submit to a lawful test of your breath, urine or blood. Additionally, if you refuse to submit to the test I have requested of you and if your driving privilege has been previously suspended for a prior refusal to submit to a lawful test of your breath, urine or blood, you will be committing a misdemeanor. Refusal to submit to the test I have requested of you is admissible into evidence in any criminal proceeding.”
Now you want to know whether you should refuse knowing that your license will be suspended for 1 year. This question is impossible to answer. It all depends of the facts, but the following is important to think about as you decide whether to refuse or submit to a test.
- There is 90 day suspension if the driver provides a breath sample of .08 or above.
- It is usually easier to defend a refusal to submit to a test compared to a breath sample of .08 or above.
- There are additional penalties (i.e. interlock device attached to your car) if the alcohol sample is .15 and above.
If you choose to refuse the test, be sure to tell the officer that you would like to refuse the preliminary screening test only and that you will submit to a blood or breath test at a police station.
If there is enough evidence (probable cause), the police may choose to arrest and take you into custody. Once at the booking station, police will ask you to submit to chemical/breath or blood test. These tests are conducted using better machines and considered to be more reliable than those administered by roadside devices. You are required to take one of these test, but you have a choice. If you are afraid of needles, do not take the blood test. On the other hand, a blood test is more reliable and the same blood sample can be retested later on if need be. Alternatively, a breath test is much less intrusive, as you just breathe into a machine.
The best recommendation we can provide is NOT TO DRINK AND DRIVE. A taxi is cheaper than a DUI.
Delicino & Vialtsin, LLP answer general legal questions emailed to us on this blog. Feel free to send us YOUR question by email. Please do not email us confidential or time sensitive information, but call 619-357-6677 The answer suggested here is for general information ONLY and not to be construed as a legal advice. Further, the Q & A does not establish an attorney-client relationship with Delicino & Vialtsin, LLP. Anton Vialtsin Google+