Should I take the breath test?

There are many factors that play into this question. I have taken several Operating Under the Influence (OUI) cases to trial and have some insight on the issue. I would suggest that you don’t take the test. I’ll explain why and what some of the consequences that may weigh into this are. The Police are very good at highlighting the consequences but don’t always believe them. They didn’t go to law school.

Let’s say that you are pulled over for the first time. The officer approaches your driver side window and asks for your license and registration. As you fumble through paperwork to find it, the officer is already thinking that you’re drunk. The more likely reason is that, like most of us, your registration is under a ton of paperwork in your glove compartment and your license is stuck to the leather in your wallet. Maybe that night, you were out to dinner with family and had a couple of drinks. The odor of alcohol is not an indication of how much was consumed but at that point the officer might ask if you were drinking and how much you had. You don’t have to answer either question and you shouldn’t. He will then ask you to step from the vehicle, which you do not have to do either, but he or she will likely place you under arrest right then and there; which is fine because you’ll probably be arrested regardless. But let’s say you step from the vehicle when asked. The cop will be taking note of anything you do that might raise a flag in their mind. Using the car for support, losing balance, slow or awkward movements. The officer will then ask you to perform some mental and physical tests that help them to determine that you are under the influence. These tests are designed to make you fail but that is another argument for another blog.

Skipping forward to you being booked at the police station. The officer will “ask” you to take the breath test. There are a few things you should know. If your test result shows a content of 0.08 or greater, you are over the legal limit. If you take the test and pass meaning you are under that limit, your license is returned. If you fail, you lose your license for thirty days. If you refuse, Melanie’s law, which was signed in 2005, is invoked and the RMV suspends your license for 180 days.

So why would an attorney suggest not taking the test? By taking the test, you run the risk of failing. So unless you didn’t consume any alcohol, don’t take the test. If you are over a .08, it makes your case a heck of a lot harder to prove in court. If you refuse and lose your license for 180 days, assuming your attorney is successful, you are eligible to get it back and your record is clean so if this happens again, you are still treated as if it were your first offense. The penalties are a lot stiffer with each offense. If your case is disposed of with a favorable settlement or verdict prior to the 180 day loss, your attorney may file a motion to have it restored and/or you may be eligible for a hardship license.

I am not condoning drinking and driving but it is not illegal to consume alcohol prior to driving. It is illegal to operate while under the influence. This kind of offense can and does happen to anyone so speak with an experienced and competent attorney right away. Think quick, call Nick! (978) 987-6163.