Cooperate or Refuse: the pros and cons of submitting to a chemical test
The scenario is about the same with the majority of DUI arrests:
Driver is pulled over for a traffic violation. Officer says that, upon talking to Driver about the traffic citation, he noticed an odor of alcohol, bloodshot watery eyes, slurred speech. Driver fails to perform roadside tests to Officer’s satisfaction. Driver is under arrest. At around this point Officer presents Driver with the Big Question: “Will you provide a sample of your breath or blood for chemical testing?” At this point, Driver’s head is spinning, weighing the pros and cons, trying to make a guess about the outcome in either instance. What is the right answer to this question?
As with most important questions, the best answer isn’t the same for every Driver in every situation. But knowing the issues to consider and the pros and cons of either decision, and having thought about the issue before the moment the question is asked, is certainly the best way to reach the right conclusion for your particular situation.
An important detail that needs to be mentioned before we go any further is that you must be very careful not to confuse a chemical test that you might be “offered” as part of the battery of roadside sobriety tests with the official chemical test of your breath or blood that becomes an issue only after you are arrested. Unless you have consumed no alcohol whatsoever in the previous 12 hours before police contact, you should not submit to the unofficial portable roadside breath test. If you are ever confused about which test is being offered to you, the official test is the one that falls in the gray area and it can be recognized because 1) the testing request is always preceded by a formal advisement about the penalties of refusing, 2) you will always be in handcuffs and/or in the back of the police car when it is offered, and 3) it is always given back at the police station; never using a portable gadget on the side of the road.
Now that you have learned to recognize the official test when it is offered, and now that you are aware that a decision about the official test is a difficult choice to make, here are the facts that you should consider in your decision:
FACT #1- You have a choice whether to submit to testing.
Regardless of how forceful the officer sounds when he “asks” you to agree to testing, you have the right to refuse. Further, since the officer will not request the official chemical test until you are already under arrest, your refusal to take a test is not going to avoid or contribute to your arrest for DUI.
FACT #2- There is a penalty for refusing testing.
If an officer has probable cause to request that a driver submit to testing and the driver refuses, the driver loses his Colorado driving privilege for one full year on his first refusal to submit testing. Penalties increase for each subsequent refusal incident, and all refusal revocations run consecutive to any other penalty imposed by the DMV. For some people, the loss of their drivers’ license is the most devastating part of the entire DUI experience and is the penalty they want to avoid most.
FACT #3- There are also penalties for a very high blood alcohol result.
The extent to which a refusal benefits a driver obviously depends on what the blood alcohol result would have been had the driver consented to testing. Drivers with very low blood alcohol content might actually be exonerated by submitting to testing. Conversely, drivers who suspect that testing might produce a very high result should weigh the 12-month loss of driving privilege against the penalties of a very high result. A BAC over 0.20 implicates mandatory jail time even on a first offense. A BAC over 0.170 will result in a mandate of the Interlock ignition lockout device in any car you drive for a period of two years.
FACT #4- Cases without chemical tests are harder for the DA to prove in court.
The BAC number is by far the single most important piece of information when a DUI case goes to a jury trial. When that BAC number is missing, the prosecution has a much harder time meeting its burden of proof beyond a reasonable doubt that the driver was intoxicated. Obviously, having a stronger case for jury trial is a very good thing for an accused driver. However, because they recognize this danger and want to give people a powerful disincentive from refusing testing, prosecutors in many jurisdictions have a policy against offering plea bargains in refusal cases. It is probably most accurate to say that a refusal is likely to prolong litigation because both sides have less incentive to reach a compromise: the driver has a case that is very defensible, and the prosecutor feels the need to make an example of each refusal case. The more resources you have to bring to the table in a lengthy dispute, the more likely you are to see the benefit of refusal.
FACT #5- Penalties increase very significantly with each prior conviction.
The more prior DUI offenses on your record, the more important it is to have a factually defensible case, and the less likely you would be to negotiate a very favorable conclusion under any circumstance. Put simply, refusing testing on your third offense makes much more sense than it does in your first.
With all these issues to consider, it’s no wonder that there is no straightforward and simple answer to the Big Question of whether it’s in a Driver’s best interest to take a chemical test. Considering all the facts together, and doing so in advance of the moment of truth, should help each Driver make his best decision if that moment ever comes.