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Post-Arrest Rights

Following your arrest, the officer will take you in a squad car to the police station. There he will read you a warning and wait for 20 minutes to make sure you have not ingested or regurgitated any intoxicants, and then he will ask you to go to to a location where a breath analysis machine can be used. The officer will ask you to blow into a hose attached to the machine.

THE LAW OF BREATH TESTING

By driving a car, the law provides that you give implied consent to be tested for intoxication. There are penalties which apply if you refuse to blow into the hose attached to the breath analysis machine. We will examine those penalties below.

THE BREATH ANALYSIS RECORD

The breath analysis record (from an approved evidentiary breath analysis machine) is often the key piece of evidence which will convict a person of DUI. If it reads .08 BAC (breath alcohol concentration) or higher, there is a presumption you were driving DUI. If that is the case, it is highly likely you will be convicted of DUI. If it reads .05 BAC to .08 BAC, there is no presumption one way or the other – you can still be convicted or acquitted. In other words, just because you are under .08 BAC, there is no presumption that you are not driving DUI unless you are also under .05 BAC.

The BAC reading makes it easy for the prosecutor to convict you of DUI. Without the BAC reading, the prosecutor’s case gets a lot harder to win, and conversely, your case gets a lot better for negotiating a favorable result or winning at trial.

PENALTIES FOR REFUSING TO TAKE THE BREATH TEST

Before you refuse to take the breath test, you should know that there are penalties for refusing. What are the penalties?

A LONGER SUSPENSION

Instead of having your license suspended for six months (if you blow into the machine), your license will be suspended for one year if you are a first time offender or 3 years if this is your second or more DUI arrest.

You may still be entitled to drive after 30 days, however. If you are a “first offender” the refusal does not make you ineligible to receive an MDDP (monitoring device driving permit). The term “first offender” means you haven’t had a DUI conviction or received supervision for a DUI charge in the past five years (before the date of arrest for the current DUI charge).

(Note that if you are convicted of DUI, your license will be revoked for one year even if you blow into the machine. If this is your second DUI, it is three years and for a third DUI it is six years.)

SUPERVISION

If you are a first offender (for this purpose meaning you have never been convicted or received supervision for DUI) and refuse to blow into the breath analysis machine, you are still eligible for supervision.