In a previous blog, we discussed Field Sobriety Tests – which include the walk-and-turn, stand and balance, and Horizontal Gaze Nystagmus – and how they are important tools used by law enforcement officers to gather evidence that supports their justification to arrest and charge suspects. We also discussed how suspects have a right to refuse those tests.
Whether a suspect chooses to take Field Sobriety Tests or politely declines an officer’s request, they may be asked to take a chemical test if a law enforcement officer has sufficient justification (probable cause) to believe they may be too impaired to drive. This is important, as officers who subject suspects to a chemical test of their breath, blood, or urine without probable cause may be conducting an unlawful search and seizure, which means any evidence obtained as a result of this unlawful search (i.e. the results of a chemical test), could be considered inadmissible in court. Often, this results in charges being dismissed because prosecutors have little to no evidence that proves a driver is impaired.
For the purpose of answering whether or not you have the right to refuse a chemical test when stopped under suspicion of DUI, we’ll assume the officer has some type of justification – whether they infer it from your body language, smell of alcohol, or other signs that may or may not be a definitive indication of impairment. In this situation, officers will likely ask drivers to first perform a preliminary breathalyzer test at the scene and / or additional testing at a police station or local jail. We explain more about these tests below:
- Field Breathalyzer Tests – Law enforcement officers often carry small, portable breathalyzer devices with them in the field in order to conduct Preliminary Breath Test (PBT) when they stop drivers under suspicion of DUI. Under West Virginia law, you have the right to refuse this PBT test. However, the choice to refuse it is a personal decision – and if you do refuse one, you may be asked to take another chemical test.
- Non-Field Breath, Blood & Urine Tests – If you exercise your right to refuse a PBT test, you must know that you cannot refuse any secondary chemical test of your breath, blood, or urine conducted at a local law enforcement station or detention facility without consequences. That’s because West Virginia has an implied consent law, which means all motorists implicitly give their consent to chemical testing as a condition of driving when requested to do so as part of a DUI investigation. If you refuse a second breathalyzer, urine, or blood test at a station or jail, you can face an automatic one-year suspension of your driver’s license, and may still be charged with driving under the influence. You may also be ineligible to participate in the DUI Deferral Program which can result in the dismissal and expungement of your DUI charge.
Due to the consequences of refusing a secondary chemical test, it is important to carefully weigh your options when choosing to take or refuse testing. In either situation, you can still work with experienced DUI attorneys like those at Sutton & Janelle, PLLC to explore your defense options. Our attorneys have extensive experience handling a range of DUI allegations, including misdemeanor and felony DUI charges, as well as cases involving suspects who took and failed PBT tests, refused PBT tests but submitted to secondary chemical testing, and those who refused both tests.
By leveraging our insight and investigating all circumstances surrounding the initial stop, investigation, arrest, and testing devices / results, we help clients evaluate how to best challenge the government’s allegations against them. This can include motions to dismiss evidence obtained through unlawful searches and seizures, challenging the accuracy of testing devices, and other strategies that allow us to seek reduced charges and penalties, or case dismissals. We also represent clients in administrative hearings to protect their driving privileges, which are matters conducted separately from criminal proceedings.
Regardless of what happened during your DUI stop, working with an experienced criminal defense attorney can make all the difference. To speak with a Berkley County DUI attorney from our firm about your case, contact us today for an initial consultation. We serve clients throughout West Virginia and Maryland.