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To blow or not to blow: that is the question

While my favorite melancholy prince was pondering greater mysteries, one of the questions I get asked the most is "Should I take a breath test or not?" As Courts sometimes do when they are asked to answer questions, first let me rephrase the question as "If I am asked to do any kind of physical exercise by a police officer to see if I am impaired, what should I say and do? And then if I am asked to give a breath blood or urine sample, what should I say?

I also want to build in a few assumptions:

  • First, I assume you have been asked to do these exercises because a police officer suspects you are impaired by drugs or alcohol.
  • Second, let's assume that you have either had something to drink or have taken any chemical or controlled substance that might impair your ability to drive.
  • Third, let us assume you are unsure how "good" you are.

Obviously, if you know you are too impaired to safely drive - call a cab or a friend. Never operate a vehicle under any circumstance if you have the slightest suspicion you cannot do it safely. But if you do find yourself pulled over by the police and you know you are impaired, you should not attempt to do any physical exercises, nor should you agree to a chemical test of your breath or blood.

Can You Really Know Your Limit? Breath Tests and Field Sobriety Testing

The unique issue with DUI is that no one really knows how to judge his or her blood alcohol. If you rob a bank, you know you robbed a bank. But if you have two beers, are you breaking the law by driving? You can't be sure without doing further testing. But if a police officer suspects you are impaired, then it's unlikely you are going to be able to convince that officer otherwise. You may feel fine at the time of the test, and feel subsequently shocked by the test results (which are far from accurate, but that's a subject for another day).

Physical Exercises

For those who find themselves in the difficult and uncertain lands between stone cold sober and "not," my advice is to always decline any physical exercises. You cannot lose your license for not doing the physical exercises (walking the line, touching finger to nose, etc). A person may perform poorly on these exercises for reasons that have nothing to do with being under the influence. Age, weight, health issues and anxiety all impact performance.

My advice is to ask to speak to an attorney - you can call us 24/7 at 386-255-1400. If the police do not allow you to make that call, then I would suggest you politely decline to do any exercises.

Breath Tests

The same is true of the breath test. My experience has been that even if you blow below the legal limit, you are still likely subject to arrest, and therefore still likely going to jail. The premise they will use is that you must be "on drugs" in order to get a urine sample. Refusing to submit to a breath test means you may lose your license. It also means that refusal can be used against you in Court. Despite these negative factors, it is generally better to decline the breath test.

Again, if you are asked to take a breath test, ask to speak to your attorney. You may call us 24/7 at 386-255-1400. Most law enforcement agencies will not allow you to talk to your attorney. You should then, in my opinion, decline to submit to any test, noting you have not been allowed to seek legal advice.

Play It Safe: Always Ask for a Lawyer

If you do ultimately feel you can pass a breath, physical exercise, or other sobriety test, you should still ask to speak to an attorney. That attorney can assist you in obtaining an independent blood test and otherwise protecting your rights.

At Delgado & Romanik, PLC., we have prepared a card to remind you of your valuable rights when you encounter the police. We encourage you to print a copy and carry it with you or save the image to your phone. Of course, you are always invited to call, write or visit us at our Daytona Beach offices for a free copy of the card.

Please don't drink and drive. But if you find yourself in a bad situation, remember we are always available to step in and protect your rights.


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