Can I get a DUI off my record if there was no breath test? 23 Answers as of January 14, 2013

I was pulled over and the cop asked me if I had been drinking. I said I decline to answer that. Do I legally have to answer if a cop asks me if I've been drinking? I didn't think so, but then he then said he suspected I had been so he said I have to do a breathalyzer. I said I decline that too. I was arrested and spent 40 hours in lock up. I have been charged with DUI but I don't think there's any evidence. What can I do to get this off my record?

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Lawrence Lewis
Lawrence Lewis | Lawrence Lewis, PC
There is evidence. There is what the police officer observed. You cannot get anything off of your record until the case is closed. IF you are convicted that will be on your record forever and ever. Then you can tell potential employers, you decline to answer that when they ask you about it.
Answer Applies to: Georgia
Replied: 1/14/2013
Law Office of Richard Williams
Law Office of Richard Williams | Richard Williams
First, you have to beat the charge. A conviction for DUI is normally made based on the officer's opinion that based on certain factors that they were under the opinion that you were too impaired to safely operate a motor vehicle on the public highways. They need neither your statement or a breathalizer for a conviction.
Answer Applies to: Alabama
Replied: 1/7/2013
Michael Breczinski
Michael Breczinski | Michael Breczinski
The cop will say that he smelled alcohol. If he claims that you were driving erratically then they have a possible case. You will be suspended for not taking the test. Get a lawyer. You need one.
Answer Applies to: Michigan
Replied: 1/7/2013
Andersen Law PLLC
Andersen Law PLLC | Craig Andersen
Nothing if you are convicted. Keep that in mind if you are considering a guilty plea. Hire an attorney and fight the charges.
Answer Applies to: Washington
Replied: 1/7/2013
Timothy J. Thill P.C.
Timothy J. Thill P.C. | Timothy J. Thill
You need to hire a lawyer to represent you. The officer needs only to believe, in his expert opinion, you were under the influence. He can determine this by the odor of alcohol on your breath, your speech, eyes, and the way you exited your vehicle and walked. Many people have been convicted under similar circumstances as you relate here.
Answer Applies to: Illinois
Replied: 1/7/2013
    Patrick Earl Attorney
    Patrick Earl Attorney | Patrick Owen Earl
    No you don't have to answer his question about drinking but that doesn't stop the officer from investigating a DUI. Sounds like you refused the BAC machine at the station. Did you do any of the field tests? If you refused the BAC breath machine there could be a problem and you need to talk with an experienced criminal defense attorney about his case.
    Answer Applies to: Washington
    Replied: 1/7/2013
    Anderson Law Office
    Anderson Law Office | Scott L. Anderson
    In MN you would be charged with refusal to test. If an officer believes you have been drinking he can request you test. If you decline it is a crime. Contact an attorney and see if you have any defenses.
    Answer Applies to: Minnesota
    Replied: 1/7/2013
    William L. Welch, III Attorney | William L. Welch, III
    You would have to be found not guilty, or the state would have to agree to just dismiss your charges. The refusal to submit to breathalyzer will likely cause your Maryland driving privilege to be suspended. The breathalyzer is just one way that the state might show intoxicated driving. The officers observations are also relevant. Many people have been found guilty without a breathalyzer and based only on the officers observations. You should seek a confidential consultation with an experienced criminal defense attorney. Keep in mind that your posts in public fora such as this might also be used as evidence, if somehow the prosecution were to find them.
    Answer Applies to: Maryland
    Replied: 1/7/2013
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    You need to hire a DUI specialist, and do it soon because you have only 10 days to save your license. By not talking and not taking any tests, you made your case a lot more defensible. But it won't mean anything if you don't have a lawyer who knows what he is doing.
    Answer Applies to: California
    Replied: 1/7/2013
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    You need to hire an attorney to fight the allegations of the DUI. They can prove it without a test, but it is much harder to do.
    Answer Applies to: Nebraska
    Replied: 1/4/2013
    The Rogers Law Firm
    The Rogers Law Firm | Andrea Storey Rogers
    Yes, you can legally refuse a breathalyzer test. No, there is nothing illegal about the police officer charging you with DUI without a breathalyzer test. You need to hire an attorney to represent you in court. If it's your first DUI and it's in municipal court, then most likely, your attorney can plea-bargain it down to a lesser offense and keep this off your permanent record. The most likely offer from the prosecutor will be an SIS (suspended imposition of sentence), probation, and you will have to attend SATOP (alcohol education class).
    Answer Applies to: Missouri
    Replied: 1/7/2013
    Law Office of Michael E. Dailey
    Law Office of Michael E. Dailey | Michael E. Dailey
    Get a lawyer immediately and challenge the refusal to preserve your license as well as investigate the defenses you may have to the charge.
    Answer Applies to: Missouri
    Replied: 1/7/2013
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    You were ok... up until the time that you declined the breath test. Big Mistake! There is what is called the "Implied Consent Law". When someone gets their license to drive on the roads of the state, they give the "implied consent" that, if asked by a police officer, who has probable cause to believe that the driver is under the influence, and asks the driver to submit to a breath test and the driver refuses, the DOL (not the court) will suspend the driver's license for a period of not less than one year. The arresting officer had probable cause to stop you (based on observed driving or what ever) and when he/she asked you questions, ,which you have the right not to answer, it only raised suspicions and resulted in you being asked to submit to a breath test.
    Answer Applies to: Washington
    Replied: 1/4/2013
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    In Michigan, by driving and accepting a license, you have given your implied consent to a breathalyzer or blood test. If you refuse they can use other evidence to prove the charges. I would have to have all of the details to see if you have a defense.
    Answer Applies to: Michigan
    Replied: 1/7/2013
    Collins Law Firm, P.A.
    Collins Law Firm, P.A. | John C. Collins
    In Arkansas, the only way to keep from being convicted for DWI is to take your case to trial and win. Prosecutors, by law, cannot drop your case. That being said, in Arkansas, our Supreme Court has stayed that a police officers opinion that you were intoxicated is evidence that can be used to convict you. You need to contact any attorney that specializes in DWI law that can attack the basis of the officers opinion. The rules are different for underage DUI. You need to call an an attorney.
    Answer Applies to: Arkansas
    Replied: 1/4/2013
    Richard B. Jacobson & Associates, LLC | Richard B. Jacobson
    You may be able to defend the OWi (=DUI), but the lack of a breath test will not help. You don't have the right to refuse a test under Wisconsin's Implied Consent Law. People are often charged with 2 separate offenses, OWI and also driving with a prohibited blood alcohol content. Generally you can only be convicted of one of the two. So the prosecution on the OWI can continue.
    Answer Applies to: Wisconsin
    Replied: 1/4/2013
    Rizio & Nelson
    Rizio & Nelson | John W. Bussman
    That's actually a couple questions. When you are initially stopped on suspicion of DUI, you are not required to answer any questions that could tend to incriminate yourself (e.g. "have you been drinking?"). You must identify yourself with a valid ID and provide proof of insurance / registration, but other than that you should refuse to answer any questions. You should not submit to a breath test at the scene of the traffic stop. If the officer has probable cause to believe that you are under the influence of alcohol (e.g. you sell like alcohol, the officer has observed bad driving, your eyes are bloodshot and watery, your speech is slurred, etc.), you are going to be arrested. Once you are transported to jail, you must submit to a chemical test of your breath or blood under California's "implied consent" law. If you refuse to do so, your driver's license will automatically be suspended for at least one year. Your refusal to provide a sample may be considered evidence that you knew you were guilty. The jury will hear all of the evidence in your case, including the officer's description of your driving, any objective symptoms of intoxication that he observed as well as the fact that you refused to provide a chemical test in violation of CA law. Based on the totality of the circumstances, a jury might still convict you of DUI even without a breath test. Of course, it's impossible for me to make any predictions without knowing a lot more about the case. You should consult with a local, experienced DUI attorney to discuss your options.
    Answer Applies to: California
    Replied: 1/7/2013
    Charles Regan Shaw, PLC
    Charles Regan Shaw, PLC | Charles R Shaw
    You do not have a DUI 'record' as yet. You have an arrest and a pending charge. If there was no PBT and no blood draw, it will be difficult to move forward with a DUI charge. Contact an attorney to represent your issue in the crucial phase.
    Answer Applies to: Michigan
    Replied: 1/4/2013
    The Law Offices of Harold L. Wallin | Harold L. Wallin
    You did not have to answer questions or take a breath test. However, you will have to defend yourself from the DUI charges. If you are found not guilty, you can file for expungement of the arrest.
    Answer Applies to: Illinois
    Replied: 1/4/2013
    Law Office of Patrick Lewis, LLC | Patrick M. Lewis
    No, you do not have to answer a cop's questions. You may be able to suppress the answer depending on whether you were under arrest at the time. You need to talk with an attorney in your area immediately. You could lose your license administratively even if you are not convicted. You must request a hearing within 14 days in Kansas to try to save your license from the administrative process.
    Answer Applies to: Kansas
    Replied: 1/4/2013
    Law Office of Scott Powers | Scott Powers
    If there is no conviction then there isn't a DUI on your record and you need to fight this charge because based on what your saying the evidence sounds weak.
    Answer Applies to: Wyoming
    Replied: 1/4/2013
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