What are my options if police ask me to take breath or field sobriety tests?

Posted on Posted in Criminal Defense

If you are stopped in Kentucky by a police officer who suspects that you are driving under the influence of alcohol or other intoxicants, you may be asked to submit to several tests. These tests are designed to help the officer determine whether you are intoxicated and, ultimately, to help the Commonwealth build a case against you.

Drivers in this situation often question whether they should refuse these tests. These issues are fact-specific, so the answers will vary based on the circumstances. This post generally describes the options that you may have if an officer asks you to submit to breath tests or to perform standardized field sobriety tests (SFSTs), because these are the most commonly requested tests.

Most drivers agree to perform all tests requested by law enforcement officers. Nonetheless, you have the right to refuse the tests, but the consequences of refusal often outweigh any potential benefits. You must weigh the facts against the consequences to determine whether to refuse a particular test.

The officer may ask you to blow into a portable breathalyzer test (PBT) device and to perform field sobriety tests at the scene of the stop. The result of the PBT test is not admissible at trial, but officers often use it to screen for plausible DUI offenses. If you refuse the PBT and SFSTs, your refusal also cannot be used against you at trial. However, the officer will look for other forms of probable cause to arrest you because your refusal will further arouse the officer’s suspicion.

If you are arrested, you will likely be asked to submit to another breathalyzer test on an Intoxilyzer machine. If you are age 21 or older and blow a blood alcohol concentration (BAC) result of 0.08 or higher on the Intoxilyzer, you are presumed to be under the influence and the Commonwealth may prosecute you under the per se DUI statute. See KRS § 189A.010(1)(a). It is difficult—but not impossible—to successfully defend a per se DUI case by arguing that the machine results were inaccurate or unreliable. If you refuse this breathalyzer test or submit and blow a result of less than 0.08, the Commonwealth can only prosecute you based on the police officer’s opinion testimony that you were under the influence of alcohol or another substance that impaired your driving ability. See KRS § 189A.010(b)-(e).

Submitting to the Intoxilyzer is frequently the best option, particularly if you reasonably believe that your BAC result is likely to be less than 0.08 (you can consult a table here or here to estimate your BAC, but the tables are only averages because everyone is different). This is so because Kentucky has enacted an “implied consent” law, meaning that simply by operating a vehicle in Kentucky you are deemed to have consented to tests of your blood, breath, and urine if an officer has reasonable grounds to believe that you are driving while impaired. See KRS § 189A.103. Kentucky law imposes hefty penalties to discourage you from refusing these tests. See KRS § 189A.105.

If you refuse a breath test at jail or the police station, you will be subject to the following consequences under KRS § 189A.105:

(1) The refusal may be used against you in court as evidence of driving under the influence under KRS § 189A.010;

(2) Your driver’s license will be suspended at least until the resolution of your case (see KRS § 189A.107 and KRS § 189A.200);

(3) If you are subsequently convicted of DUI, then you will be subject to a mandatory minimum jail sentence which is twice as long as the mandatory minimum imposed if you submit to the tests (4 days instead of 2 days for a first offense); and

(4) You will be unable to obtain a hardship license.

If you have been charged with Driving Under the Influence (DUI), you should retain experienced counsel to assist you. Call our office at (502) 410-0404 to discuss your case.

This post is not legal advice and is not intended to form an attorney-client relationship.