Simply put, the Minnesota Supreme Court ruled that a person has the right to consult with an attorney only if police have chosen to invoke the implied consent advisory. The court is basically saying that the right to pre-test counseling only applies if police are attempting to charge you with a crime for refusing to submit. If they don’t plan on pursuing implied consent charges, then you can’t yet consult with a lawyer. If the implied consent advisory has been given, a critical stage has been reached, but if police do not provide that advisory and continue to pursue the case as part of the criminal process of a DWI case, you’ve not yet reached a critical stage where you can contact a lawyer.
Can I Refuse a Breathalyzer Test?
While you may not be under arrest at this point, refusing a Breathalyzer may not be such a great idea as prosecutors may still base a potential DUI/DWI charge on other evidence collected at the scene, including officer observations, witness testimony, or the results of a field sobriety test. In certain jurisdictions, your refusal may be used against you in any possible trial. And some state laws distinguish between refusing a mobile Breathlyzer (which can carry a small penalty) and refusing a post-arrest blood, urine, or breath test at a police station or hospital (which can result in more severe penalties).
Refusing to Perform a Breathalyzer or Provide a Blood Sample
Previously, in any case where DUI was suspected, officers in some police departments would take a blood sample for chemical testing without the driver’s consent and without a warrant. In Missouri v. McNeely, 133 S. Ct. 1552 (2013), the Supreme Court concluded that that officers cannot routinely take forced blood samples in all suspected DUI cases, and that taking a blood sample without a warrant cannot be justified merely because alcohol dissipates rather quickly over time. Rather, the situation must be considered on a case-by-case basis and officers can take a blood sample without a warrant and without a person’s consent only if there are special facts that make it necessary to do a blood draw before too much time passes and the alcohol in the driver’s blood dissipates. For example, if a driver has been seriously injured, and the officer needs to do the blood draw immediately before transporting the driver to the hospital for medical treatment, then an officer can do a blood draw without a driver’s consent.
Q: In Nevada, can I be forced to take a Breathalyzer if I request to talk with an attorney first?
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Can you refuse a breathalyzer at a party if you are underage?
Harm to minors, violence or threats, harassment or privacy invasion, impersonation or misrepresentation, fraud or phishing, show more
The decision on whether to take a breath test or a sobriety test is a difficult one. Most states and officers will not allow you to put everything on hold until you call and consult with an attorney. Usually, when you tell officers that you won’t take a sobriety test until you have talked with an attorney, this invocation of right to counsel will be considered a refusal of their sobriety or breath tests. You will have to make the decision on your own on whether or not to take the breath test. If you are falling down drunk, taking any type of sobriety test is only going to garner more evidence against you as you will likely be arrested either way. In this situation, you may want to refuse any sobriety or breath tests, unless you are required by law. On the other hand, if you know, or don’t think, you are intoxicated, you may want to consider taking the breath test or sobriety test.
Do Not Blow or Give Blood
Once you refuse to blow, the officer will place you under arrest, confiscate your license, and issue you a yellow piece of paper that acts as your temporary license and gives you a notice of suspension. There is a civil penalty for refusing to take a breathalyzer test or refusing to give a blood sample. There is an implied contract between you and the Texas Department of Public Safety that in order to avail yourself of the privilege of driving in Texas, you will voluntarily submit to a breathalyzer test or give a blood sample when asked by a police officer.
Refusing to Perform a Breathalyzer or Provide a Blood Sample
In order to discourage drivers from taking this approach, some states have enacted “no-refusal policies.” These policies allow law enforcement to immediately contact an on-call judge and obtain a warrant to conduct a blood alcohol test. The warrant is then sent to the law enforcement officer’s phone or computer, allowing the test to be conducted quickly. This approach is termed “no-refusal” because once a law enforcement officer has obtained an immediate warrant, the driver cannot refuse to submit to the test without facing the possibility of serious punishment, such as contempt or obstruction of justice charges. The hope is that these policies will discourage drivers from avoiding breathalyzer or blood alcohol tests by eliminating the likelihood that the driver can sober up in the interim.
When determining whether you can pass a breathalyzer test, be aware that the results of the test depend on many factors and procedures that need to be executed for the test to be valid. For example, it is possible that the device is wrong, which would cause enormous miscarriages of justice. That’s why it is important to consult a criminal lawyer when arrested. He or she will assess your case, give you a legal opinion based on the facts surrounding your arrest and make the most of those facts to help you “beat” the test. The following are some of the factors that your lawyer will take into consideration when making the case: