Several months ago this column dealt with information to help a DUI arrestee determine whether to take a breath test upon his first arrest. This article will involve an arrestee with a previous DUI.

Suppose you have had a DUI arrest sometime in the past. You were given court supervision so you believe that your driving record will show no previous DUI. Actually your “court purposes” record will show that you have had court supervision for a DUI in the past, so you are ineligible for a second court supervision. If that previous DUI was more than five years ago, the Secretary of State (SOS) will send you a letter saying that you are a “first offender.” Many drivers will hope that the first offender status means they are eligible for court supervision because the plain meaning of “first offender” is simply that – that you have never had a DUI before. When the SOS uses the term “first offender” they are only saying that you have had no DUI’s in the last five years, and therefore you are eligible to rent a BAIID device that will let you drive your car from the 76th day after your arrest, until the court finds you guilty, at which time your license will be revoked, and you will lose the right to drive, even with a BAIID – or if found not guilty, you can drive freely.

In this scenario you have had a DUI in the past, so you are ineligible for court supervision for this DUI. Because of that previous DUI, you will not be eligible for the fewest hours of alcohol treatment, and can expect the court to require about 30 hours. If convicted you must do 5 days in jail, or 240 hours of community service work. If convicted of this second DUI, and later convicted of a third, you could be sent to prison for that third DUI.

So as you see, the decision whether to take the breath test is an important one. Fail the breath test, and your license can be suspended for a year, and revoked for a minimum of a year, refuse it and you can be suspended for three years.

Add to all these consequences the fact that you have been drinking, you are standing at the side of the road with cars whizzing by, and you have red and blue revolving lights in your eyes. What should you do? (A note is in order here. The officer has the right to ask of you to take a blood, breath, or urine test, so the references below refer to either blood, breath, or urine testing.)

Take the breath test if:
1) You have given the officer no reason to believe you are driving under the influence, you KNOW your blood alcohol level is below .08 and you know there are no other foreign substances in your body (prescribed or not prescribed) that could effect your ability to drive.
2) You know you are very intoxicated, and will be convicted with or without a breath test.
3) You know the officer can describe your driving, demeanor, and performance or non-performance of the field sobriety tests in a manner that will convince a judge or jury that you are under the influence.
4) You need the right to drive as soon as possible after your DUI conviction.

Do not take the breath test if:
1) You are clearly under the influence, and are felony eligible.
2) You know your blood alcohol level is near the .08 limit and you have given the officer no reason to believe you are under the influence of alcohol. You know there are no other foreign substances in your body (prescribed or not prescribed) that could effect your ability to drive. This scenario occurs when you have a few drinks, after work, make a rolling stop at a stop sign, you complete the field sobriety tests correctly, and the officer arrests you anyway.

As you can see, there are many considerations to be weighed when you have to decide whether to take a breath test after a DUI arrest. You might be expected to make those decisions at a time when you are least qualified to do so. After dealing with over a thousand DUI’s I quit drinking. If you’re in danger of a DUI arrest, take a cab, make arrangements with a friend that he can call you anytime he wants, if you need a ride, and give him the same offer. Find someone at the bar where you’re drinking that you know is sober, and pay him to give you a ride home. A DUI is not worth the risk as the laws become more and more stringent.


Get every new post delivered to your Inbox

Join other followers: