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Refusal of Breathalyzer in D.C. May Help Win Your Case

by | Oct 15, 2013

When former National Football League quarterback Bernie Kosar was arrested in Ohio recently on suspicion of DUI, he reportedly slurred his speech, had glassy eyes, was unsteady on his feet, couldn’t smoothly follow a pen with his eyes and was unable to recite the alphabet with accuracy.

In other words, authorities say, he was drunk.

However, our D.C. DUI defense lawyers recognize that Kosar may have one big thing working in his favor: He refused to undergo a breathalyzer test.

In the state of Ohio, similar to the District of Columbia, there are laws governing implied consent to such tests. That is, by virtue of the fact that you are behind the wheel of a motor vehicle, you have consented to undergo such testing. If you refuse to consent to the testing, police can’t force you. However, you will receive an automatic one-year license suspension, as opposed to the 90-day suspension you’d receive with a first-time DUI.

So why might this work in your favor? Because a DUI conviction can result in worse things than a license suspension, and the results of a breathalyzer test result showing your blood-alcohol level was 0.08 percent or higher will serve to shore up your chances of conviction.

Depending on the circumstances surrounding your arrest and the nature of your profession, a conviction may potentially result in the loss of a job or future job prospects. A conviction for DUI is going to remain on your criminal and driving record permanently.

Plus, a DUI conviction may also result in the loss of your freedom. Newly-enhanced DUI laws in D.C. increased the minimum jail time for a first-time offender from 90 days to 180 days. The fine also went from a maximum of $300 to a maximum of $1,000.

If you happen to blow a breathalyzer test result that shows you had a blood-alcohol concentration of 0.20 percent or higher, you will have to serve a minimum of 10 days in jail (where it was previously five days). If your blood-alcohol level is measured at 0.25 percent, you will serve a minimum of 15 days, up from 10. If you register a 0.30 or higher, you will be made to serve no fewer than 20 days behind bars.

However, if you never undergo the test, prosecutors will have virtually no way to prove that your intoxication level was that high, unless they obtain a warrant to draw your blood without your consent.

Not to mention the fact that breathalyzer tests have a notorious reputation for inaccuracy, particularly here in D.C. In fact, the Metro police department was forced to shut the program down for nearly two years after discovering major flaws with the calibration of the devices, which led to them being completely removed from operation for a period of time.

The tests are back now, though we have yet to have confidence fully restored in the devices.

Despite the checkered history of the devices, juries tend to give them a great deal of weight. So the bottom line is if you know you probably aren’t going to pass the test, don’t give prosecutors one more piece of evidence to use against you by consenting to a breathalyzer.

If you are facing DUI charges in D.C., contact the Scrofano Law, PC at 202-765-3175.