Law Enforcement Can Request a Test

When you “signed on the dotted line” for your driver’s license, you agreed to undergo chemical testing of your blood, breath or urine under certain circumstances.  If these circumstances exist, and a law enforcement officer legally asks you to submit to a test, refusing to take that test is a crime.  In fact, the crime of “test refusal” is more serious than a basic first time DWI. 

 A law enforcement officer may require you to take a test when he has probable cause to believe you were driving, operating, or in physical control of a motor vehicle while under the influence of alcohol or other controlled substance so long as at least one of the following conditions also exists:

  1. You have been lawfully placed under arrest for DWI;
  2. You have been involved in a motor vehicle accident resulting in property damage, personal injury, or death;
  3. You refused to take the preliminary screening breath test usually given on the side of the road; or
  4. The preliminary screening breath test was administered and indicated an alcohol concentration of 0.08 or more.

You Cannot Decide What Kind of Test to Take

Contrary to popular belief, you do not have the right to decide what kind of test (blood, breath or urine) you will take.  However, if the officer asks you to take a blood test, he must also give you the option of taking an alternative type of test such as breath or urine.  The same is true for urine.  If the officer asks you to take a urine test, he must also offer an alternative type of test such as blood or breath.  However, it is completely up to the officer to decide what type of alternate test he will offer.  For example, if the officer asks you to take a blood test or a urine test, you have no right to demand a breath test. 

There are many things the law enforcement officer can do wrong during this process which may be challenged in court.  Depending on the facts of your case, winning those challenges can result in dismissal of the case against you, or reduction to a less serious charge.  Sometimes just getting the charge reduced is a huge success.  Basic first time test refusal charges are gross misdemeanor offenses which carry maximum penalties of up to one year in jail and a $3,000.00 fine.  Additionally, your license will be suspended for at least one year, and if you have priors, your vehicle may be forfeited.

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