One of the most common questions that defense attorneys are asked is, “What should a person do if they are pulled over due to suspicion of a DUI?” More specifically, the question is often, “If I’m pulled over for a DUI, should I refuse to take the breathalyzer test?” While people who ask this question are generally searching for a clear-cut response, the answer depends on your particular circumstances.
Most every attorney will tell you that the most important action to take is to call your attorney as soon as possible. When it comes to your specific course of action regarding a breathalyzer, however, the answer is much more complicated. What we can tell you is what Kentucky law says about these tests and what your rights are when you are pulled over for a DUI.
Kentucky is an “Implied Consent” State
Every state has their own laws regarding driving under the influence and the rights of people who are pulled over. In Kentucky, driving is not considered a right, but more like a privilege. Therefore, when you are pulled over, the officer has the right to submit you to testing. You, on the other hand, simply by driving a motor vehicle, have given what is called “implied consent” to submit to a test, including a breathalyzer.
It is up to the officer to choose the method of testing (breathalyzer, blood test or urine test). The testing must take place within two hours of the time that you ceased operating the vehicle. However, the officer must first observe a person for at least 20 minutes before administering a breath test and, during that time, a person can and should call their attorney. Even if you have not been arrested, an officer can request that you take a preliminary breath test.
What A Refusal Can Mean for You
If a test determines that you are intoxicated, there are obviously going to be consequences. However, there are also consequences for simply refusing to take a test. Your license will be suspended, while the DUI case is pending. The length of the suspension will be determined by the number of prior DUI offenses you have on your record. If you end up being convicted of a DUI 2nd or greater offense after a refusal, your sentence could be twice as long. The fact that you refuse a test can even be used against you as evidence that you were intoxicated while driving.
There are some important caveats to this process. For example, the machines used by police in the field – the kind used in preliminary breath tests – are not very reliable, and the results are not admissible in court. What a preliminary test does do is give an officer even more reason to suspect that you are intoxicated. Refusing a test at a police station on the Intoxilyzer machine will be used against you, but so would a test result that revealed you are intoxicated.
Basically, police officers and prosecutors have a big advantage against those who are accused of a DUI. The laws are designed to be “tough” on drunk drivers and to crack down on the occurrence of impaired driving. The result for some Kentuckians is a heavy-handed process in which someone accused of a DUI, whether he or she is guilty or not, may feel as though they are damned if they do, damned if they don’t.
This is why, rightfully, attorneys always say that you should immediately call a defense attorney if you are accused of a crime or if you suspect you will be accused of a crime. The reason attorneys give this response is because they know all too well how important it is to have an advocate when accused of a crime, and how easily a person can be placed into an undesirable situation without one.
If you (or a loved one) have been arrested in Kentucky or in the Lexington area in particular, call my office at (859) 685-1055 for a free consultation. Our lawyers specialize in helping defendants fight back on assault charges, misdemeanors, domestic violence, property crimes, drug charges and more, call today.