Will not taking breathalyzer affect my court hearing ? 51 Answers as of July 11, 2013

I refused the breathalyzer and only received the DUI after being taken into the station. Will this have any affect in my hearing?

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Jules N. Fiani, Attorney at Law
Jules N. Fiani, Attorney at Law | Jules Fiani
Yes, taking a breathalyzer will affect your court hearing.
Answer Applies to: Michigan
Replied: 7/4/2013
Thomas J. Tomko Attorney At law
Thomas J. Tomko Attorney At law | Thomas J. Tomko
Thank you for your inquiry In Michigan, a refusal will result in a 1-year license suspension regardless of what occurs in Court. You can request a SOS hearing, however, if you lose, you will get the 1-year suspension At Court, without a breathalyzer, the Prosecutor will need to prove DUI in a different way. Smell of alcohol, admission of drinking, erratic driving, failure of sobriety tests, glassy bloodshot eyes, stumbling, etc. All of these things can go to proof of intoxication and thus proof of driving under the influence.
Answer Applies to: Michigan
Replied: 6/27/2011
Law Office of Phillip Weiser
Law Office of Phillip Weiser | Phillip L. Weiser
The refusal to take the breathalyzer will have a consequence on your drivers license, but should not be used as evidence against you in court.
Answer Applies to: Kansas
Replied: 6/24/2011
Bloom Legal, LLC
Bloom Legal, LLC | Seth J. Bloom
Based upon the specific laws in your state, refusing a breathalyzer may have some automatic consequences such as the suspension of your driver's license (this is the case in Louisiana although you may contest this suspension through an administrative hearing within 15 days of your arrest). As far as how your case unfolds in court, there is no guaranteed outcome but it may be something you can use to your advantage in your defense due to a lack of evidence. Conversely, it may appear as though you were attempting to hide the fact of your intoxication at the time of your arrest. These are issues which a DWI defense attorney will be able to advise you on after reviewing the specific details of your case. If you are seeking legal representation in this matter in Louisiana, we invite you to contact our firm at the information on this page for a free case evaluation.
Answer Applies to: Louisiana
Replied: 6/24/2011
Komanapalli Massey LLP
Komanapalli Massey LLP | Mark A. Massey, Esq.
For refusing the breathalyzer, you could have your license suspended. Further, you created a presumption of probable cause to arrest you. Will it affect the outcome should you ultimately challenge the DUI at trial? Yes. Of course. The DA would advise the jury of your refusal. Your case however, will not go to trial because your smart attorney is going to get you a plea deal. Run with it.
Answer Applies to: California
Replied: 6/24/2011
    Michael R. Nack, Attorney at Law
    Michael R. Nack, Attorney at Law | Michael R. Nack
    If you are located in Missouri, this event happened in Missouri, and you are a Missouri driver, then your driver's license will be revoked by the Department of Revenue for one year as a result of your refusal. An attorney may be able to save your license. In regard to the criminal case itself, obviously the fact that the police do not have the breathalyzer results will effect your case. If you do not already have an attorney, you should hire the very best criminal defense attorney you can afford. If you are located in my geographical area I might be able to offer my services to you for a reasonable fee, Please feel free to contact me.
    Answer Applies to: Missouri
    Replied: 6/24/2011
    Michael Breczinski
    Michael Breczinski | Michael Breczinski
    In most States they will give you an additional suspension for refusing the breath test. In Michigan this suspension is longer than if you received your first DUI. The hearing is separate from the court case in Michigan. You could get acquitted on the DUI and still get suspended.
    Answer Applies to: Michigan
    Replied: 6/24/2011
    Harden Law Offices
    Harden Law Offices | Leonard D. Harden
    Yes, it likely means the state has less evidence. Contact a DWI defense lawyer and they will be able to assist you in providing detailed explanations on how to best win your case.
    Answer Applies to: New Hampshire
    Replied: 6/24/2011
    The Law Office of B. Elaine Jones
    The Law Office of B. Elaine Jones | B. Elaine Jones
    Not taking the breathalyzer will better your changes on betting the DUI in Court if you look good and perform well on the field sobriety tests. However, by refusing the breathalyzer your license is automatically suspended for 18 months and there is nothing that you can do about that. You may be eligible for a Work Permit to drive but you have to request the permit. If your case is in the Tampa Bay area and you wish to make an appointment for further consultation, please contact my office at the email or phone number listed.
    Answer Applies to: Florida
    Replied: 6/23/2011
    Law Office of Thomas F. Mueller
    Law Office of Thomas F. Mueller | Thomas Mueller
    If you are referring to the small hand held device the police have at the scene, there will be no effect at all. You are not obligated to take that test. But the one given at the station must be taken or you lose your privilege to drive and the judge usually imposes a more severe sentence.
    Answer Applies to: California
    Replied: 6/23/2011
    Law Office of Eric Sterkenburg
    Law Office of Eric Sterkenburg | Eric Sterkenburg
    It will be noted. However, you did take a test at the station and the filed test is only to see if you need the other test so you should be OK.
    Answer Applies to: California
    Replied: 6/23/2011
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    You made a big mistake by not asking to talk to an attorney before you refused the breath test. Your license will be revoked for 6 months and you will pay a $650 fine for the refusal. You will probably have to go to trial and that will make you legal fees much more unless you are indigent and have an attorney appointed. You should always have an attorney's card in your wallet, especially if you want to risk driving drunk which may cost you thousands of dollars in fines, insurance payments and lost job opportunities. Drunk driving is a very costly lesson to learn, but at least you didn't injure yourself or someone else.
    Answer Applies to: New York
    Replied: 6/23/2011
    Gregory Casale Attorney at Law
    Gregory Casale Attorney at Law | Gregory Casale
    It should weaken the state's case against you if you did not provide them this important piece of evidence. If you were falling down drunk, it may not make any difference. But if you simply had a few drinks or beers and were in fairly decent shape for the field sobriety tests and observed operation of your vehicle, if there was any, this lack of breath test should definitely assist your attorney in defending you. I love cases where there is no breath test. It levels the playing field and gives the client a good chance to prevail. If you haven't hired counsel yet and are in the Central Massachusetts area, I would be happy to discuss your case with you in more detail. My telephone number and contact information, as well as my web site info is all laid out below. Feel free to call. There is no fee for a telephone consultation. I handle many many DUI cases and look forward to cases such as yours where the breath test is unavailable to the prosecution.
    Answer Applies to: Massachusetts
    Replied: 6/23/2011
    Lacy Fields, Attorney at Law, LLC
    Lacy Fields, Attorney at Law, LLC | Lacy Fields
    What did they do at the station? Did you take a breathalyzer at the station? Did they have someone draw blood? And when you saying hearing do you mean the DOR hearing (regarding your license).
    Answer Applies to: Missouri
    Replied: 7/11/2013
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    In most states, they have adopted what is called an "Informed Consent" law. What it says is by accepting the privilege of using the public roads, you consent to take a breath test whenever an officer swears to the following: 1. He or she had probable cause to arrest a suspect for driving while under the influence of any intoxicating substance; 2. You are under arrest and 3. You have been advised of your right to refuse the breath test AND that your refusal will be admissible against you in court. The ways an officer supports probable cause is by reciting facts that tend to prove the requirements above. Such facts may be weaving, slurred speech, blood-shot eyes, odor of intoxicants, nystagma or where your eyes start to twitch in relation to a fixed point and field sobriety test performance. In addition, some states use a portable breath test to support probable cause to arrest. In Implied Consent states, refusing to take the formal breath test at the police station also means you will lose your license for a period of months. The main thing people should remember is there are some reasonable explanations for refusing the test. I once defended a gentleman against a DUI and obtained an acquittal. My client was career military and he didn't do anything without consulting with his commanding officer. I also asked the police officer to demonstrate how he showed my client to perform the field sobriety tests. The officer ended up stumbling pretty significantly. The jury came back with a "not guilty" verdict after 45 minutes. Need I say more.
    Answer Applies to: Washington
    Replied: 6/23/2011
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    Of course. The officer will describe your drunken refusal as part of his case against you. Also, your license will be automatically suspended for one year because of that refusal. Also, when you are arrested for DUI, whether alcohol or drugs, then upon release from jail or booking you were given documents that included a notice that you have only ten days to file a request with DMV for a hearing on an appeal of an automatic one-year suspension of your license imposed by DMV because of the DUI arrest. That is separate and runs consecutively with any suspension that may be imposed by the court, and separate and runs consecutively with the other automatic suspension caused by your refusal. Contact DMV and do so, timely, then appear at your scheduled DMV appeal hearing and present any supporting evidence and testimony. Of course you can fight the DUI. When arrested or charged with any crime, the proper questions are, can any evidence obtained in a 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 and facts 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: 6/23/2011
    Jared Justice Attorney at Law
    Jared Justice Attorney at Law | Jared Justice
    Yes. There will likely be a fine for refusing (which is not a crime). Also, they officers will not have your BAC level, if this is taken to trial. I do believe that is very much in your favor. Please feel free to contact me.
    Answer Applies to: Oregon
    Replied: 6/23/2011
    Law Offices of Carl Spector
    Law Offices of Carl Spector | Carl Spector
    In some states the refusal to take a breath test is a separate and distinct charge. In other states the refusal can be used as consciousness of guilt at your trial.
    Answer Applies to: New York
    Replied: 6/23/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    Yes. Under Minnesota, a refusal to test results in a more serious offense in most cases. It also removes from defense arguments challenges to the test procedure and validity since the test was refused. In general, it reduces available defenses.
    Answer Applies to: Minnesota
    Replied: 6/23/2011
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    Refusal to take the breath test will not affect the case in chief, prosecution will rely upon the officer's observations of your physical co-ordination and the effect of the alcohol on you at the time, upon which he will base his expert opinion. Where you are affected is in the period of license suspension. If you had taken the breath test and failed, you would be suspended for 6 months, a refusal will result in a year suspension.
    Answer Applies to: Illinois
    Replied: 6/23/2011
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    The question is, what hearing? You will have to have a hearing at DMV and if there was probably cause and you refused the breath test, then your license is going to be suspended. There are all kinds of other hearings. If that's not the one you're asking about then reply to me with more information.
    Answer Applies to: New York
    Replied: 6/23/2011
    Law Office of Jonathan T. Sarre
    Law Office of Jonathan T. Sarre | Jonathan T. Sarre
    Refusing the breathalyzer will affect somewhat the evidence that the state can use against you. Obviously, a jury's job is harder if there is no breath test result versus the knowledge that the person blew a, say, .16. This may make it more difficult for the state to convict you. Because of this, in Oregon, where I practice, it is legal for the state to use the failure to take the breath test against you in court. This means the state is allowed to argue that essentially the reason you didn't take the breath test is because you knew you were going to fail. This kind of argument is usually not proper in court because it is a comment on your right against self-incrimination, but as I said, it's admissible in Oregon. The Oregon legislature has also made it a traffic violation to refuse a breath test. So people who don't take the test are also facing a fairly hefty fine ($500) if they don't blow when requested to by police. On top of that, Oregon law also allows the DMV to suspend your license for a longer period for refusing the test (1 year for refusal for first time DUII arrestee vs. 90 days for taking the test and failing). This consequence of a DUII arrest, however, is a function of the DMV and has nothing to do with the court system.
    Answer Applies to: Oregon
    Replied: 6/23/2011
    The Chastaine Law Office
    The Chastaine Law Office | Michael Chastaine
    No really. If you took a test, then your are in compliance and the case will stand or fall of that test taken at the station.
    Answer Applies to: California
    Replied: 6/23/2011
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    A DWI case is very complex and has broad reaching effects on your ability to operate a motor vehicle and your permanent criminal record. You need to retain counsel, such as our office, that specializes in DWI defense.
    Answer Applies to: New York
    Replied: 6/23/2011
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    If you refused the PBT (portable breath test), the one at the car it is a misdemeanor; if you refused the one at the police station then you will need an attorney to fight the case.
    Answer Applies to: Nebraska
    Replied: 6/23/2011
    Law Office of Thomas A. Medford, Jr., PC
    Law Office of Thomas A. Medford, Jr., PC | Thomas A. Medford, Jr.
    Your failure to take the breathalyzer test will result in the state not having the Breath test results to introduce at your trial however depending on the laws of your state your driver's license could be administratively suspended for up to one year for failure to take the breathalyzer test. Since the laws of individual states vary one this subject you may wish to consult a local attorney who practices in this area of the law.
    Answer Applies to: District of Columbia
    Replied: 6/23/2011
    Law Office of Andrew Subin
    Law Office of Andrew Subin | Andrew Subin
    The State can use the fact of refusal against you (in other words, they can argue that you refused because you knew you were drunk.) Otherwise, the refusal will be viewed as a high (over .15) BAC. There are also more severe licensing consequences from a refusal.
    Answer Applies to: Washington
    Replied: 6/23/2011
    Michael Anthony Wing, P.C.
    Michael Anthony Wing, P.C. | Michael Anthony Wing
    In my experience here in AL, it is better not to blow if you have the slightest doubt that you may exceed the .08 limit. Be polite to the officer, but simply refuse to blow. If you have any physical ailments that prevent you from performing the field sobriety tests, tell the officer. Then explain that you would prefer not to speak anymore other than to inquire if you are free to leave. If you are not free to leave, then you are under arrest. Be polite but remain silent. Deal with the situation once you have counsel without giving evidence to the executive branch officer that is looking to start the process of convicting you before you have even said a word to him or her. Stay well.
    Answer Applies to: Alabama
    Replied: 6/23/2011
    Law Office of Peter F. Goldscheider
    Law Office of Peter F. Goldscheider | Peter Goldscheider
    Number one you will receive a letter from the DMV seeking a suspension of your driving privilege in that you are obligated to take the test at the request of the officer. While they may not have evidence of your alcohol letter, in the criminal case, the DA may not be willing to reduce the charge and if you go to trial the jury would be instructed that they can take into consideration that you may not have wanted to take the test because you knew that you were under the influence.
    Answer Applies to: California
    Replied: 6/22/2011
    Bristol & Dubiel LLP
    Bristol & Dubiel LLP | Murray L. Bristol
    In Texas, the prosecutor can argue that refusing a breath or blood test can be used as evidence of guilt that you are guilty of a drunk driving case.
    Answer Applies to: Texas
    Replied: 6/22/2011
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    Not if you are in Michigan. The breathalyzer is not admissible as evidence.
    Answer Applies to: Michigan
    Replied: 6/22/2011
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    Not taking the breath test can have either negative or positive effects depending on the circumstances.Normally, attorneys prefer not to have a breath test when they go to trial. Any reading over .08 will have a great impact on swaying a court or jury to convict.
    Answer Applies to: Alabama
    Replied: 6/22/2011
    Theodore W. Robinson, P.C.
    Theodore W. Robinson, P.C. | Theodore W. Robinson
    Your"hearing" is going to be a trial and yes, it will potentially help you since they won't have a breath test result to put before the jury. However, that is not the only thing they can do to prove their case against you, so you should hire the best DWI lawyer you can find and defend yourself strongly. By the way, your refusal will result in the suspension or revocation of your license administratively by the DMV. Good luck.
    Answer Applies to: New York
    Replied: 6/22/2011
    Pontrello Law
    Pontrello Law | William Pontrello
    DMV suspends your license and the Refusal is admissible in evidence.
    Answer Applies to: Florida
    Replied: 6/22/2011
    Klisz Law Office, PLLC
    Klisz Law Office, PLLC | Timothy J. Klisz
    Yes, you will lose your license for up to a year for refusing the test. Michigan has implied consent, which means you must take the test or lose your license.
    Answer Applies to: Michigan
    Replied: 6/22/2011
    Fitzpatrick, Mariano, & Santos, PC
    Fitzpatrick, Mariano, & Santos, PC | Raymond J. Savoy
    The fact that you did not take the test does not affect your criminal case. If your case goes to trial the prosecutor has a more difficult case in that they need to fully rely on the police testimony to prove you were intoxicated
    Answer Applies to: Connecticut
    Replied: 6/22/2011
    McWhirter Law Firm
    McWhirter Law Firm | Barry McWhirter
    Refusing to take a breathalyzer is a separate criminal offense. It is violation of the implied consent law. Nevertheless, it makes it much more difficult for the state to establish that you were intoxicated if they do not have the results of a breathalyzer test. Therefore, you may have helped yourself avoid getting a DUI, nevertheless, you will most likely be convicted for violation of the implied consent law.
    Answer Applies to: Tennessee
    Replied: 6/22/2011
    Gonzalez Law Associates P.C.
    Gonzalez Law Associates P.C. | Carlos Gonzalez
    It can, generally without specific evidence of alcohol in your system it becomes a he said she said situation and wholly up to your attorney to essentially argue and win this case. Refusing to take a breathalyzer by law will result in a year long suspension of your license.
    Answer Applies to: New York
    Replied: 6/22/2011
    Cynthia Henley, Lawyer
    Cynthia Henley, Lawyer | Cynthia Henley
    In Texas, refusing the breath test on the scene does not have any effect on your case. Refusing the breath test at the station has a couple of effects - the refusal can be used by the prosecutors to argue that you refused because you knew that you would blow over the legal limit (that is a big so-what - it is better than failing it) and the refusal results in a longer suspension of your privilege to operate a motor vehicle does than a failure. I'm not sure to what hearing you refer.
    Answer Applies to: Texas
    Replied: 6/22/2011
    Austin Legal Services, PLC
    Austin Legal Services, PLC | Jared Austin
    If you are talking about the PBT when the police pull you over, then no. A PBT refusal is a no-point civil infraction with a nominal fine (unless you have a CDL). It's the Data Master at the police station that really matters and that will be the main evidence against you. Have an experienced DUI attorney review the police report and chemical results to check for any errors or weak spots that could get the charges reduced or dismissed.
    Answer Applies to: Michigan
    Replied: 6/22/2011
    Law Offices of Phil Hache
    Law Offices of Phil Hache | Phil Hache
    To clarify, usually the cop will ask you to do a breathalizer on the field, known as the P.A.S. test, then a breathalizer (or blood test) at the station? If you refused the P.A.S. test, there is no penalty. If you refused a breath test or blood test after being arrested, they will charge an enhancement to the DUI charge. Contact me if you would like to speak to me about your case in more detail. Whatever you decide to do, I highly recommend hiring a qualified DUI attorney to help you in your case.
    Answer Applies to: California
    Replied: 6/22/2011
    Law Office of Andrew Roberts
    Law Office of Andrew Roberts | Andrew Stephen Roberts
    If you refused to take any evidentiary test the DMV will suspend your license for one year. You need an attorney to deal with the DUI.
    Answer Applies to: California
    Replied: 6/22/2011
    Law Office of Tracey S. Sang
    Law Office of Tracey S. Sang | Tracey Sang
    It very well may help you. It's one less piece of evidence they have to use against you. The only time a breathalyzer really helps is if you're trying to make an argument for a rising BA level and you need it for comparison to the result at the station.
    Answer Applies to: California
    Replied: 6/22/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    Refusing the breathe test offered to you by law enforcement can have a major impact on the outcome of your case. From a positive standpoint, your refusal has made it more difficult for the prosecutor to convict you of DUI because they do not have a blood or breathe test result to show to the jury. This means they will have to attempt to prove their case by way of the driving observations of the officers (if any) and the result of the "field sobriety test" you likely took at the scene. From a negative standpoint, in most states the department of motor vehicles will suspend your driving privilege if after a hearing it is determined you willfully refused all chemical tests. In addition in most states if you are in fact found guilty of a DUI, your punishment will be more severe, including likely jail time, where otherwise for a first offender DUI who does not refuse, jail time is normally not imposed.
    Answer Applies to: California
    Replied: 6/22/2011
    Nichols Law Firm
    Nichols Law Firm | Michael J. Nichols
    It depends on your state. In some states, refusing is a benefit because it's just that much less that the state can use against you. In Michigan, it's a mildly complicating factor in terms of saving your license but its poentially helpful in terms of the requirements of the state to get the breath or blood estimate into evidence.
    Answer Applies to: Michigan
    Replied: 6/22/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Yes and no. Refusal cases are treated more severely by the prosecutor, but they are more defensible by defense attorneys. Contact a DUI specialist soon, as you have only 10 days to save your license by requesting a separate civil hearing.
    Answer Applies to: California
    Replied: 6/22/2011
    Law Office of Michael Morgan, l.L.C.
    Law Office of Michael Morgan, l.L.C. | Michael Morgan
    In Washington state, assuming certain protocols were followed, there is a strong negative inference drawn in court from refusing to take a breath test. Michael Morgan
    Answer Applies to: Washington
    Replied: 6/22/2011
    Rothstein Law PLLC
    Rothstein Law PLLC | Eric Rothstein
    Yes. The DA will seek to introduce the fact that you refused as consciousness of guilt. Your license can also be suspended for refusing the test.
    Answer Applies to: New York
    Replied: 6/22/2011
    Law Office of Rankin Johnson IV, LLC
    Law Office of Rankin Johnson IV, LLC | Rankin Johnson IV
    If the police officer had probable cause to ask you to take the test, your refusal can be admitted against you at trial. Whether the police officer had probable cause is for your attorney to raise in a motion to suppress.
    Answer Applies to: Oregon
    Replied: 6/22/2011
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