The primary issue in a DUI case is whether probable cause exists for the arrest. You are not required to incriminate yourself to police when an officer asks if you have been drinking. The police are asking this question to gain probable cause to arrest you. The police will also ask you to do roadside testing (test conducted on the side of the road, such as, a portable hand-held breath test, the HGN, Walk & Turn, and One-Legged Stand tests). Such tests are not mandatory nor will refusing such tests cause your licensed to be suspended or revoked. Roadside tests are subjective and only help the police arrest you for a DUI. Police don't like to mention it, but these roadside test are voluntary. The reason roadside testing are voluntary is because they are not reliable! The reliability of such test are greatly in question. In fact, the hand-held portable breathalizer given on the side of the road is inadmissible at trial because it is not reliable. Why would you allow unreliable test determine whether you get a DUI or not? Refuse the roadside testing and let an attorney help you fight the case. By refusing to incriminate yourself regarding drinking and refusing the roadside testing, your attorney can argue lack of probable cause to arrest for DUI.
If you are arrested, refusing chemical testing is different than refusing roadsides. By refusing the chemical testing, your license will may be revoked contingent upon a finding by an administrative officer at the DMV as to whether the officer had enough to arrest for DUI. Regarding the DMV hearing, always request a hearing within 7 days of arrest and indicate that you want the officer to appear because if he/she fails to appear your case will be dismissed. Additionally, if the officer appears it provides your attorney with an opportunity to cross-examine the officer early and obtain a transcript of his/her answers, which may be helpful in your pending criminal case. Help your attorney help you by remaining silent so as not to give the police probable cause to arrest you. While our firm does not encourage drunk driving, we do want you to know your rights if you are questioned by police.
Driving Under the Influence differs from Driving While Ability Impaired. Driving Under the Influence means your ability to operate a motor vehicle was substantially impaired whereas Driving While Ability Impaired means your ability to operate a motor vehicle is impaired to the slightest degree. Check out the L A W BLOG for more information on Driving Under the Influence of Alcohol and/or Drugs and Driving While Ability Impaired.