Can You Be Falsely Classified as Refusing to Undergo a Breath Test?

Interviewer: Do you have clients that say, “Well, I didn’t refuse. I tried. Or something else happened, but they marked me as refused.”

Attorney Nebeker: That would be one of the ways we defend a refusal. We can show that they attempted to undergo the test. Some people have problems breathing. They have asthma or they’re older and they don’t have that lung capacity.

If the officer marks them for a refusal, we have a print out from the machine that says at least they tried and they were cooperating. Really, at that point, the officer doesn’t have to, but most often, they will move on to get blood. If they do refuse the machine, most of the time the officers will get a warrant and go get blood.

The breath test I have seen people refusing is the portable breath test administered on the side of the road. The video will show the officer asking them over and over, four or five times, to blow into it.

The real test that counts is the chemical test, which is the Intoxilyzer machine down at the station. I haven’t seen too many where they’ve been marked as refusal for not being able to blow, and depending on the officer, most of the officers will just move on to blood and try to get the blood.

In Utah, You Cannot Choose Which Chemical Test to Undergo

Interviewer: Can you choose to have a blood test instead of a breath test or do they chose for you?

Attorney Nebeker: The driver does not get to choose the chemical test that he will submit to. The officer will say, “Well, I want you to blow into the machine,” and the driver will say, “No. I want you to take my blood,” and right then and there, a lot of times, the officer will mark that as a refusal. You do not get to choose which test you get to take.

You Can Be Asked to Undergo More Than One Chemical Test

Interviewer: What happens if you do the breath test but then they want to do your blood after that? Do you have to do a second chemical test? Can you refuse that?

Attorney Nebeker: I had a client I represented a while ago, and the trooper put this in his report that he had him blow into the machine and the number came back below the legal limit. This is what he put in his report, “I don’t really trust that machine.” I thought that was kind of comical. Then he went on to draw blood.

The blood results came back and it was a negative, also.  People will, after the field sobriety test, while they’re out on the side of the road, they’ll blow into the portable breath tester, which is not an accurate, calibrated machine like the one is that the police station. The number on that can’t be used as evidence in the court.

They’ll blow out there, they’ll cooperate, they’ll do the field sobriety test, they’ll blow on the portable breath tester out in the field, but then they’ll get back to the station and the officers will hand them the wand to blow into the Intoxilyzer machine. The individual will say, “Well, no. I’ve already done it.”

That’s where I see some refusals happen. That’s one of the most common reason people are classified as refusals. They say, “Well, I’ve already done it once; I’m not doing it again,” but they don’t understand that’s the one that really matter is the one at the police station.

If You Refuse to Submit to a Blood Test, the Officers Can Obtain a Warrant to Compel You to Provide a Blood Sample

Interviewer: What happens if you refuse the blood test? Will they forcibly take your blood or get a warrant?

Attorney Nebeker: Most of the time on refusals, the officers will get what’s called an E warrant. This is a really quick way for them to get the judge’s signature on a warrant to take your blood. You’re down at the jail. There are plenty of staff members to hold you down and stick the needle in your arm. They will get a blood sample one way or the other.

Most of my clients, once they see that the officer has the warrant, they will submit to the blood draw. After the have the warrant, it is too late for them as far as the refusal portion goes. Once they get that warrant, all the officers will still mark it as a refusal, which has the increased sanctions on your driver’s license.

Refusing a Chemical Test Has Severe Consequences Including a Lengthy Loss of License

Interviewer: What are the penalties for refusing a chemical test, for a first or second DUI?

Attorney Nebeker: In my opinion, they’re pretty harsh. A first refusal on a first defense DUI is 18 months, a year a half. On the second or subsequent offense, it’s three years with no license.

Utah Does Permit Hardship Licenses If You Have Refused a Chemical Test

Interviewer: Can you get a hardship for an occupational or work license?

Attorney Nebeker: No. There’s nothing like that. That’s one of the bigger issues for most of my clients. They have to maintain their license. For instance, a single mother that has to get her children to school and she has to get to work.

She makes a poor choice in judgment and refuses the chemical test. Now, that’s 18 month suspension she has to try and maintain her family and her job without her license. Most of the time, it is impossible for them to do. They drive and get caught up in these cycles of driving on a suspended license.

On a Refusal, When Your License Is Restored, You Must Install an Ignition Interlock in Your Vehicle

Interviewer: Besides the extra driver’s license suspension, what are the other refusal consequences?

Attorney Nebeker: When they do get their license back, they become an ignition interlock restricted driver for 3 years on a refusal.

If it’s a second offense or more it could be up to six years. In addition to the interlocked restricted driver, you also become an alcohol restricted driver. That means you can’t have any alcohol on your breath.

If an officer pulls you over and smells alcohol then has you blow into the machine and it blows 0.01, that’s a violation of the law. That can trigger another year suspension of your license.

What Are the Penalties for Driving under an Alcohol-Related License Suspension?

Interviewer: What happens if you drive under alcohol suspension and you get pulled over; what are the consequences there?

Attorney Nebeker: That would be another class B misdemeanor. There is a fine that can be opposed on that. It’s no less than $750.00, but it adds another year to your suspension. Or if you had your license back and you were alcohol restricted; it’s going to suspend your license for a year, for a conviction of that offense. That’s pretty harsh.

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