Should I blow? Is an Important Question to Ask Yourself If You Find Yourself In Trouble
After finding out how many impaired cases I have been involved in, formerly as a prosecutor and now as a defense lawyer, I am often asked if you should provide a roadside sample if asked to by an officer.
My answer in almost all cases is YES.
Here are some important pieces of information to help you make the right decision…
1.It Doesn’t Matter if You Do Not Think That You Are Drunk
When a court is evaluating whether or not the officer had the right to demand a roadside sample it doesn’t matter if you thought you were drunk, it doesn’t even matter if the officer thought that you were drunk. The Court only needs to determine whether or not the officer had a reasonable suspicion that you are operating a motor vehicle with alcohol in your body. Being drunk has nothing to do with it, it comes to whether or not you were drinking. Regardless of blowing a 1 or 100, all the officer needs is to reasonably suspect that you were drinking and driving.
2.It Doesn’t Matter If You Were Driving
Again, the officer only needs to have a reasonable suspicion that you were operating a motor vehicle with alcohol in your body. The side of the road is not the time to litigate the case. It is unlikely that your questioning of the officer roadside can be used in court.
The test for a roadside sample is low but the penalties for refusing to provide that sample are high. The bottom line is, don’t argue or attempt to convince the officer roadside, comply, and let your lawyer find the error later.
3.You Do Not Have The Right to Call a Lawyer Prior to a Roadside Sample
To be clear, you have a right to call a lawyer if you are providing samples at the station, and you should always exercise that right, but at the roadside, you are not afforded the same opportunity.
4. Failing to Provide Can be Worse Than Blowing Over The Legal Limit
Failing to provide a roadside sample carries the same penalties as a conviction for blowing over the legal limit at the station. If you refuse to blow you will be charged with a refusal. You will be subject to all the same sanctions as if you were charged with impaired driving. You will lose your license on the spot for 90 days and your vehicle will be impounded for 7 days. If convicted of the refusal you will be subject to a fine of at least $1000 and a mandatory 12-month driving prohibition.
Basically, you are damned if you do and you are damned if you don’t.
5. You Cannot be Convicted Solely on the Roadside Sample Result, Even if You Fail
The roadside sample is simply another piece of evidence that the police can use to require you to provide evidentiary breath samples back at the station. Providing a roadside sample may lead to samples at the station. It is after the roadside test that can open up a multitude of avenues for your defense. By requiring you to provide further samples at the station the police engage more of your Charter rights. There are more opportunities for a skilled defense lawyer to find avenues of attack and more chances of crafting a successful argument that will lead to the exclusion of the evidentiary samples and a dismissal of the charges.
Of course, not every situation can be covered by the points made above and there are legitimate defenses to failing to provide a roadside sample, such as a medical condition.
You should always take the opportunity to consult with counsel in order to receive advice on how to proceed.
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