Some out of state friends of mind were in town and we were discussing the issue of drunk driving. They said that their attorney advised them to refuse any of the tests offered by a police officer or to answer questions posed by a police officer. Is this good legal advice?
-Kim S.
Dear Kim,
This is a question we frequently receive at our firm. First of all, police officers must have a valid reason to stop your vehicle. Assuming that the police have a valid reason for pulling you over and they believe that you may have had too much to drink, there are several things you should consider.
For starters, remember that police officers are people. As such, when police officers make a request, it is be best to be courteous and polite. That does not mean you must or should make any statements or perform any tasks or tests that might incriminate you for driving while under the influence. If asked how much you had to drink, it might be best to inform an officer that you would rather not make any statements without an attorney present.
In addition, you are under no obligation to perform any roadside tests that a police officer asks you to perform. Commonly referred to as field sobriety tests, these may consist of several exercises such as the proverbial "walk the line" test, administered by an officer in an attempt to determine whether or not your consumption of alcohol has affected your ability to drive.
You may even refuse to take a road side breath test also know as a Portable Breath Test (PBT). A PBT is really an investigative device used by police to determine an individual's blood alcohol level and typically cannot be used as evidence in a criminal prosecution for drunk driving. If you refuse to take a PBT you will receive a ticket and a fine, but you will not incur any criminal liability as such a refusal is a civil infraction, like a speeding ticket.
The risk, however, by not complying with an officer's requests is that he or she may mistakenly perceive your noncompliance as a refusal to submit to any test. In Michigan, we have what is called the implied consent rule. When you obtain a driver's license you have agreed to take a chemical test once an officer has a reasonable suspicion that you have driven while under the influence of alcohol or that your ability to drive is visibly impaired by your consumption of alcohol. Different from the PBT test, a police officer is required to read you your chemical test rights and request that you submit to a test of his choosing. This may be a breath, blood or urine sample. If you refuse to submit to his or her test, you will lose your driving privileges for an entire year. Your refusal does not mean that a test may be not obtained; in fact, the police officer may obtain a blood alcohol sample by requesting a search warrant from any judge or magistrate if he or she has justifiable reasons for requesting one.
In may cases, this is a much harsher punishment for our clients than the underlying criminal prosecution, and the suspension is imposed by the Secretary of State and not the judge. You may even successfully beat a drunk driving case in Michigan, only to find that your ability to drive has been suspended for the year.
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