Am I incriminating myself if I say no to a breathalyzer? 2 Answers as of November 20, 2010

Am I incriminating myself if I say no to a breathalyzer?

Ask a Local Attorney. 100% Anonymous. Free Answers.

Free Case Evaluation by a Local Lawyer: Click here
The Barrix Law Firm
The Barrix Law Firm | Jason Barrix
In Michigan you may be asked to take two separate types of Breathalyzers. First is the Preliminary Breath Test (PBT). PBTs are not admissible in criminal trial except under limited circumstances. Refusal is a small civil infraction and fine. PBTs are not admissible because they are not reliable. PBT can only be required in a driving case. In all other cases including MIP an officer cannot compel a PBT absent a warrant. For that matter in all other cases absent a search warrant they cannot require Blood, Breath or urine.

The Second type used in Michigan is the BAC Datamaster. This is admissible if proper foundation is presented to the Court. This is used in DUI cases. Failure to submit to a chemical test of either the BAC Datamaster, Blood or Urine results in a suspension of your Drivers License if the officer has reason to believer you committed a drunk driving or OUID crime. That you are under arrest for the drunk driving or OUID crime. You were advised of your chemical test rights. Finally that you refused to submit to the test. This is for one year. A restricted license is available for hardship through the Circuit Court at the Courts discretion.

The Datamaster should not be confused with the PBT the PBT is portable and usually given in the field. It can be used in Court to show probable cause. It can also be used in limited other situations. The datamaster is typically given in the jail, police department, or a mobile unit.

Refusal to take a test will not necessarily incriminate you as you have a right to refuse. However, if you refuse the datamaster the officer can seek a blood or urine search warrant. There is a jury instruction that instructs the jury that you were offered a chemical test and refused and they may consider that evidence.

So it does not incriminate you but can have other serious implication make sure you understand what test you are being asked to take.
Answer Applies to: Michigan
Replied: 11/20/2010
Austin Legal Services, PLC
Austin Legal Services, PLC | Jared Austin
You are not necessarily incriminating yourself because your refusal cannot be used against you as evidence of your guilt. However, in Michigan, refusing a breathalyzer carries the same penalties as the DUI so there really is usually no incentive to refuse; only under certain specific conditions. If you have been charged with refusal or with a DUI you need to contact an experienced DUI attorney as soon as possible because the consequences are high. Feel free to give us a call at (517) 614-1983. Best of everything.
Answer Applies to: Michigan
Replied: 11/18/2010
Click to View More Answers: