Can I go to jail for refusal to take a breath test? 42 Answers as of July 03, 2013

I was pulled over and arrested for dui and refusal of breath test. The arresting officer only gave me 1 field sobriety test, which was the flashlight test. He did it for 3 or 4 min. He didn't ask me to do anymore. On the dmv hearing he testified he did more than 1. He took me to jail and there the deputies looked through both of my memory cards for my camera without me knowing. Is the cop supposed to do more field testing and can the jail look through my pictures without my knowledge?

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Cornish, Crowley, Rockafellow, & Sartz, PLLC
Cornish, Crowley, Rockafellow, & Sartz, PLLC | Jacob Peter Sartz IV
My first advice would be to obtain an attorney to assist you with this matter. This response does not contain specific legal advice. If you need specific legal advice for your own circumstances, I recommend consulting with an attorney experienced with these types of matters. Most attorneys provide free initial consultations. Simply because a person is charged does that mean that they will be found guilty. Anyone charged is presumed innocent until proven guilty. The prosecutor must prove any allegations beyond a reasonable doubt. Whether a search was valid and whether the tests were valid are always big issues with OUI cases. If there were issues with the search or tests, a well researched and effectively argued motion to suppress may prohibit the evidence from being introduced at a possible trial. Ultimately, questions about whether a search and seizure were valid depend on the circumstances.
Answer Applies to: Michigan
Replied: 10/6/2011
Lewis & Dickstein, P.L.L.C.
Lewis & Dickstein, P.L.L.C. | Loren Dickstein
No.
Answer Applies to: Michigan
Replied: 6/9/2013
Austin Legal Services, PLC
Austin Legal Services, PLC | Jared Austin
They can do any number of FBT or just one if they so choose. However, it's always better for them the more they do or attempt to do. You cannot be taken to jail on the basis of refusing a PBT. That is a civil infraction with a $100 unless you have a CDL. You were probably taken in for suspicion of drunk driving. Keep in mind that you can always refuse FBT and that refusal cannot be used against you. However, at the station, you must submit to the DataMaster breath test or else face being charged with a crime. I don't think they had a right to look through your memory card as it should not have presented any safety issues. Make sure you retain an experienced criminal attorney.
Answer Applies to: Michigan
Replied: 8/24/2011
Law Offices of John J. Connors, Esq.
Law Offices of John J. Connors, Esq. | John J. Connors, Esq.
Often what the authorities "can do" and what they will do are two different things. You need to speak to a competent criminal defense lawyer and present all of the facts.
Answer Applies to: Massachusetts
Replied: 8/23/2011
Law Office of Phillip Weiser
Law Office of Phillip Weiser | Phillip L. Weiser
The officers do not have to give any sobriety tests before they decide to make an arrest for DUI. All tests they give are designed to give some indication of impairment and can be used as evidence to show impairment. The fact that the officers only gave one test will only serve to reduce the amount of evidence they may have to show you were impaired. You may wish to consult with an experienced DUI attorney.
Answer Applies to: Kansas
Replied: 8/22/2011
    Law Offices of Jeffery A. Cojocar, PC
    Law Offices of Jeffery A. Cojocar, PC | Jeffery A. Cojocar
    I would retain an attorney to represent you in theses circumstances.
    Answer Applies to: Michigan
    Replied: 8/31/2011
    Michael Breczinski
    Michael Breczinski | Michael Breczinski
    He does not have to give any preliminary tests at all. He does these to bolster his claim that he had probable cause to ask you to submit to alcohol testing. No they should not have looked through the memory of your camera without at least probable cause.
    Answer Applies to: Michigan
    Replied: 8/20/2011
    Jules N. Fiani, Attorney at Law
    Jules N. Fiani, Attorney at Law | Jules Fiani
    No.
    Answer Applies to: Michigan
    Replied: 6/9/2013
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    A refusal to take a test is often more serious than the DWI offense that may result from a failed test. A Refusal to test is a gross misdemeanor punishable by up to 1 year in jail and a $3000 fine. A DWI with a blood alcohol content under 16 is a misdemeanor punishable by up to 90 days in jail and a $1000 fine. There is also a civil case that results in the revocation of your driver's license. On a first offense over your lifetime, you may be revoked for 30 to 90 days. On a refusal, the revocation is one year. There are many challenges to a DWI. Officers must follow very specific steps as part of the arrest. If any one step is missing, the case may be dismissed. Certainly, the officer must have reasonable suspicion to believe a specific crime has been committed in order to stop a person. If that reasonable suspicion is lacking the stop and the ticket may be invalid.
    Answer Applies to: Minnesota
    Replied: 7/3/2013
    Bloom Legal, LLC
    Bloom Legal, LLC | Seth J. Bloom
    In Louisiana, refusal to take a breathalyzer test requires your arrest and generally includes a provision for the suspension of your driver's license (something you will need to contest at an administrative hearing within 15 days of your arrest to avoid automatic long-term suspension). Some people view a refusal to blow as part of a defense strategy to avoid providing direct evidence of DWI, this does not however mean that you have the right to refuse the test. Driving is a privilege granted by states and not a right. This is why you will be arrested immediately for failing to submit to a breath test. That being said, an experienced DWI defense attorney can work to prove that police lied in reports, illegally obtained evidence or a number of other items which may help in your defense if these happen to be part of the facts of your specific case.
    Answer Applies to: Louisiana
    Replied: 8/19/2011
    Thomas J. Tomko Attorney At law
    Thomas J. Tomko Attorney At law | Thomas J. Tomko
    Thank you for your inquiry It appears that there are many facts in your case. You were likely arrested for OWI, and not for failure to take an evidential breathalyzer test. A refusal is a civil infraction and by itself, not an offense which justifies an arrest. It appears that you had a hearing at the SOS concerning the refusal of an evidential test at the police station. It may also be that you had a blood test. The real question is whether there is evidence to support a conviction for OWI. The lack of following procedure when it comes to sobriety tests may be a factor in formulating a defense. However, this alone does not mandate dismissal. Other facts would need to be evaluated to see whether your case is a good one to take to trial. You should discuss these things with the attorney who is representing you in your proceedings. I hope that this was helpful.
    Answer Applies to: Michigan
    Replied: 8/19/2011
    Law Office of Andrew Subin
    Law Office of Andrew Subin | Andrew Subin
    You did not go to jail for refusing a breath test, you were booked into jail for DUI. The officer does not need to do any specific number of roadside tests, but he must have probable cause to believe you were intoxicated. The police should not have looked at your photos without a search warrant. They will most likely not be able to use any of the evidence from the memory cards against you.
    Answer Applies to: Washington
    Replied: 8/19/2011
    Edward  D. Dowling IV Attorney at Law
    Edward D. Dowling IV Attorney at Law | Edward D. Dowling IV
    I would need further information to answer both questions because it depends on a legal analysis of all the facts and circumstances since the law is complex and there are general rules and exceptions to them.
    Answer Applies to: New York
    Replied: 8/19/2011
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    If you refuse to take the breath test your license will be revoked for six months and you will have to pay a $750 civil penalty. You may have to go to trial in some jurisdictions on a refusal case. You should have taken the test if you had less than five drinks. If you have an accident or drank more than eight drinks in a four hour period you should call an attorney to get advice before you take the test. They must give you the test within two hours, and they can search you and your possessions if you are under arrest. You state in your summary that they checked the photos on your camera's memory card. That would probably be an illegal search unless they had a warrant.
    Answer Applies to: New York
    Replied: 8/19/2011
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    Can I go to jail for refusal to take a breath test? No, but you can still be found guilty of DWI and do time without a breath sample. Is the cop supposed to do more field testing Not necessarily can the jail look through my pictures without my knowledge? Yes You clearly need DWI defense counsel.
    Answer Applies to: New York
    Replied: 8/19/2011
    Anderson Law Office
    Anderson Law Office | Scott L. Anderson
    You can go to jail for not taking a breath test. In MN if a police officer believes you have been drinking he may ask you to take a breath test and if you don't submit you can be charged with refusal which is a gross misdemeanor with a maximum penalty of one year in jail and a $3000 fine.
    Answer Applies to: Minnesota
    Replied: 8/19/2011
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    The test that the officer gave to you was the horizontal gaze nastagmus (HGN) test. If the officer opines that you were under the influence of alcohol or any other substance, he does not necessarily have to perform any test. You were not jailed for refusal to take the breath test you would not be given the breath test unless you were under arrest. The officers at the jail had no reason or cause to look through your memory cards in your camera unless they had your permission or a search warrant. If they secured your memory cards to use as evidence against you that evidence might be suppressed. If they simply gave you back your memory cards and your camera there is not much you can do unless you want to file a complaint with internal affairs.
    Answer Applies to: Alabama
    Replied: 8/19/2011
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    The cop arrested you based on his experience and field testing which led him to believe you were intoxicated. Whether he needed to do more field testing is not necessary if, from his experience and observations of you, he had reason to believe you were intoxicated.
    Answer Applies to: Michigan
    Replied: 8/19/2011
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    You can't go to jail for refusal to take a chemical test, however, there is a mandatory one year suspension of your driving privileges by the secretary of state. As for looking at your pictures, it would depend on the policy of the department as to how they inventory property that comes into their possession. In a prosecution for OWI, the prosecutor must prove the charge beyond a reasonable doubt. If there is only one field test, the prosecutor may have a difficult time. In regards to the officer's testimony at hearing, you should obtain a copy of the police report to see what he said he did in the report.
    Answer Applies to: Michigan
    Replied: 8/19/2011
    Law Office of Thomas A. Medford, Jr., PC
    Law Office of Thomas A. Medford, Jr., PC | Thomas A. Medford, Jr.
    The refusal to take a breath test generally results in the administrative suspension of your driver's license not jail time. Under the facts that you presented you may wish to consult an attorney.
    Answer Applies to: District of Columbia
    Replied: 8/19/2011
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    Can I go to jail for refusal to take a breath test? No, but you automatically lose your license for a year for the refusal. You already know the outcome of the DMV hearing on appeal of automatic one-year suspension of your license imposed by DMV because of the arrest. Each of those are separate and run consecutively with any suspension that may be imposed by the court. You could end up with 3 years of suspension. Of course you can fight the DUI charges. When arrested or charged with any crime, the proper questions are, can any evidence obtained in a test, search or confession be used against you, and can you be convicted, and what can you do? Raise all possible defenses with whatever admissible and credible witnesses, evidence, facts and sympathies are available for legal arguments, for evidence suppression or other motions, or at trial. Not exactly a do it yourself project in court for someone who does not know how to effectively represent himself against a professional prosecutor intending to convict and jail you. If you don't know how to do these things effectively, then hire an attorney that does, who will try to get a dismissal, diversion, reduction or other decent outcome through plea bargain, or take it to trial if appropriate.
    Answer Applies to: California
    Replied: 8/19/2011
    Frances R. Johnson
    Frances R. Johnson | Frances R. Johnson
    The issues of how many tests were administered are issues to be discussed with your attorney about possible ways to challenge the charge. Property can be searched incident to arrest.
    Answer Applies to: Colorado
    Replied: 8/19/2011
    Cynthia Henley, Lawyer
    Cynthia Henley, Lawyer | Cynthia Henley
    You go to jail for suspicion of DWI. This is as the result of officer's observations and possibly a field breath test. If you refuse, you are taken to the station where they give you the field sobriety tests again if they were not recorded at the scene (and if the population is over 50,000.) Whether or not he lied about the additional tests is up to a jury to decide. As far as the memory cards, they are supposed to get a warrant to view images on memory cards. Apparently you have a lawyer. You should be talking with your lawyer about these issues.
    Answer Applies to: Texas
    Replied: 8/19/2011
    Eric J Schurman, Attorney at Law
    Eric J Schurman, Attorney at Law | Eric James Schurman
    There's no requirement that an officer conduct a certain number of tests for DUI.
    Answer Applies to: Washington
    Replied: 8/19/2011
    Law Office of Michael Morgan, l.L.C.
    Law Office of Michael Morgan, l.L.C. | Michael Morgan
    You can be booked into jail on a DUI and a refusal can be used as evidence in a DUI trial. Jails can do inventory searches but they cannot be changed into evidentiary searches. I hope this answers your questions.
    Answer Applies to: Washington
    Replied: 8/19/2011
    Law Office of Neal L. Weinstein
    Law Office of Neal L. Weinstein | Neal L. Weinstein
    He can do 1 or more, but the lack of fst's gives you the opportunity to challenge the arrest on a lack of probable cause, and no, the cops have no right to look through your pictures without your permission or a warrant, that is called an illegal search. Make a complaint to their supervisor. Also, hire an attorney immediately to challenge the arrest and charges. If you took no breathalyzer after your arrest, there is even less evidence to prove guilt, but again, you need a lawyer now. And also fight the suspension from the Sec of State.
    Answer Applies to: Maine
    Replied: 8/19/2011
    Law Office of Edward J. Blum
    Law Office of Edward J. Blum | Edward J. Blum
    On a first time DUI, a refusal will result in a 1 year suspension and may result in community labor or jail depending on where you're located. They need to read you the admonition on the back of the DS 367. The need to advise you that you have a right to take a blood or a breath test. Once they do, you have to pick one. If you do not, if you are silent or if you tell them that you will not take a test, then this is a refusal. If they don't read you the admonition, then you can't have refused. I'm sure the officer lied on the DS-367 and said you refused. That is typical. The cops are not supposed to look through the memory card of your camera. They are extending the holding in a recent case that held the police could review your texts on a cellphone as a search incident to arrest. People v. Diaz. In that case, the police reviewed Murphy's cellphone 23 days after his arrest and the Supreme Court said that it was okay. This is a continued expansion of the holding in U.S. v. Robinson which held that the police could search a person incident to arrest and seize contraband/evidence unrelated to the subject offense; Chimel v. California which allowed the police to search the immediate vicinity; and NY v. Belton which allowed the police to search the passenger compartment of the defendant's car incident to arrest. In Arizona v. Gant, the Supremes reined in the Belton decision and said the police could not search a vehicle without a warrant, incident to arrest where there was no danger of destruction of evidence or threat to officer safety.
    Answer Applies to: California
    Replied: 8/18/2011
    A.L.A. Law Group, LLP
    A.L.A. Law Group, LLP | Lauren M. Mayfield
    They have to admonish you of the 1 year license suspension for a refusal which is on the back of the DS367 forms. If they did not do this you can fight the refusal case. They may have thought you were under the influence of drugs (and he was examining your pupils) and were looking through your camera for indictia of drug use. They still should have offered you a blood test or urine test before charging you with a refusal.
    Answer Applies to: California
    Replied: 8/19/2011
    The English Law Firm
    The English Law Firm | Robert English
    The refusal is not an offense in and of itself, but it will cause a license suspension. The officer is not required to give any specific sobriety tests. Once he determines that an offense has been committed, that is all he needs. Once you have been arrested, you can be searched incident to arrest which would include your camera cards for evidence.
    Answer Applies to: California
    Replied: 8/18/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    The cop doesn't even have to do any FST's. It is discretionary, and they can do 1 or 2 or 10 or none at all. Once you are arrested, your property can be examined. You need to hire a DUI specialist, because refusal cases, while very defensible, have severe consequences in court and the DMV.
    Answer Applies to: California
    Replied: 8/18/2011
    Watkins Law Office
    Watkins Law Office | Bob Watkins
    In order to prove you were intoxicated the Officer will usually do 3 or 4 standard sobriety tests. And no, the police can not look at your memory card without a warrant. And no again, one does not go to jail for simply refusing a breath test.
    Answer Applies to: New Hampshire
    Replied: 8/18/2011
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    They should not have looked at you pictures. You obviously had your DMV Hearing so you know the score. You may lose your license for a year but you can't go to jail just for refusing to take a breath test. The penalty is loss of you driving privileges.
    Answer Applies to: New York
    Replied: 8/18/2011
    The Law Office of Kevin O'Grady
    The Law Office of Kevin O'Grady | Kevin O'Grady
    The questions seems to indicate that at least some time has passed since the arrest since there has already been a DMV hearing. If you truly want to fight your case you need to hire an attorney willing to fight and not just plead you out. Time is of the essence since you have already had your DMV hearing and the case is presumably set for trial.
    Answer Applies to: Hawaii
    Replied: 8/18/2011
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    For simply refusing to take a breath test. the answer is no; however, for refusing to submit to a breath test, the Department of Licensing can suspend your drivers license for a minimum of one year or more depending upon your criminal record and whether or not your license is a commercial drivers license. Your loss of license will take effect even if you are NOT convicted of the DUI. From your facts it sounds like you were stopped for a DUI investigation: the fact that you refused can also be used against you in a criminal case. You can be convicted of a DUI even without a breath test, based upon other factors in your case. In the event that you are convicted, a DUI is a jailable offense. So, yes, indirectly, you could go to jail for a refusal. As for additional testing, yes the officer can do more testing unless you tell him NO and inform him that you are choosing to exercise your constitutional rights.
    Answer Applies to: Washington
    Replied: 8/18/2011
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    You can be arrested as long as the cop has probable cause to arrest you for DUI. Factors he or she may consider include your driving, the light test, field sobriety tests, your appearance, blood-shot eyes, slurred speech and red skin. As far as looking through your camera, they would have to have a warrant to search and or seize it unless it is evidence of DUI.
    Answer Applies to: Washington
    Replied: 8/18/2011
    John Segelbaum, P.S.
    John Segelbaum, P.S. | John Segelbaum
    You can not go to jail for refusing the breath test. You do however lose your license for a year unless you successfully contest the DOL administrative action against your license and you can still be arrested for DUI. If convicted of DUI wilth a refusal, you lose your license for 2 years. It is improper for the jail staff to look at the pictures in your camera.
    Answer Applies to: Washington
    Replied: 8/18/2011
    Law Office of Thomas F. Mueller
    Law Office of Thomas F. Mueller | Thomas Mueller
    It is possible for the judge to impose a jail sentence in any DUI. But they normally don't. The refusal is an aggravating factor but usually results in a few more days in the work program, not jail. There is no requirement that the police give any certain tests or any at all for that matter. They try to gather enough evidence for the D.A. to get a conviction. The cop is allowed to look through your camera but only if there is reason to believe there is evidence of a crime in it. In this case it looks like he went too far and whatever he found can be excluded by the judge and not used against you.
    Answer Applies to: California
    Replied: 8/18/2011
    Law Offices of Matthew Murillo
    Law Offices of Matthew Murillo | Matthew Murillo
    There seems to be something missing. Your question indicates you already had the DMV hearing. If so, and you had an attorney, you should contact them about this. If not, then I strongly suggest you take the arrest report (if you have it) and consult with some attorneys. That said, refusing to take a chemical test (blood or breath test) AFTER being arrested for DUI will NOT send you to jail on its own. It WILL, however, enhance penalties (i.e., potential 1 yr license suspension if a first offense). The DUI arrest alone subjects you to possible jail time.
    Answer Applies to: California
    Replied: 8/18/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Christopher Lee
    If you are a licensed driver in the state of California you give implied consent to a blood or breath evidentiary test. If you refuse to take a blood or breath evidentiary test AFTER the officer properly admonishes you then it may be determined to be a refusal and your license can be suspended up to one year. However, a preliminary alcohol screening (PAS) breath test is voluntary and the officer should have advised you that it is a voluntary test. If you decline to do a PAS test, it is not considered a refusal. With regard to your camera, it is likely the officers looked through your camera to see if you videotaped the officers or took any pictures of them. Most often, police officers do not like to be filmed, since they may not be following proper procedure or may be infringing on your constitutional rights, thus officers prefer not to have any video tape evidence that can be used against the officers. If any video tape or pictures were found on your card that may incriminate any police officer in wrong doing, the officers could have an opportunity to delete those pictures and/or video.
    Answer Applies to: California
    Replied: 8/18/2011
    Gregory Casale Attorney at Law
    Gregory Casale Attorney at Law | Gregory Casale
    The police can arrest you with "Probable Cause" which is a low level of suspicion that you are driving (or Operating) under the influence (OUI). The real question is can they convict you. Hire an attorney who, like myself, handles a lot of OUI cases. He will be able to tell you if they have enough to convist you or not. It doesn't sound it from what you have said so far, but of course the police have a different version.
    Answer Applies to: Massachusetts
    Replied: 8/18/2011
    Rothstein Law PLLC
    Rothstein Law PLLC | Eric Rothstein
    You don't go to jail for refusing the breath test but the fact that you refused can be used as evidence if you go to trial depending on the facts. You can get a pre-trial hearing to try and suppress the refusal. I don't think the police can look at your photos without a warrant but unless there are photos the DA intends to use against you, it's not really an issue.
    Answer Applies to: New York
    Replied: 8/18/2011
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