I know how it works- so what should I do?

Now you know a little more about how the magic box on the cop’s desk works and how it may not be reliable, what do you do about that when asked to blow?

1. Were you read your DR 15 rights? If you were not properly advised of your rights and signed off on the form you are not required to do anything. Albeit if the officer somehow failed to advise you of your rights, you may not elect to bring this to his attention just to allow him to fix the problem.

2. If you were properly advised it is very important that you have the advice of counsel to further evaluate your situation prior to you giving evidence against yourself. That is, blowing in the machine will result in evidence against you. Your government has somehow come to the conclusion that this is non-testimonial evidence and therefore you lose certain safeguards but that is a post for another day. The important thing is to contact counsel, if possible, for advice.

3. If DUI counsel is not available then you should understand that your failure to provide a breath sample will result in your driver’s license being suspended administratively for 120 days. This


is untenable for a DUI suspect so they may be compelled to blow against their better judgment.

4. However, if this is a multiple offense for the driver, ie. second, third or fourth, one may want to consider very carefully the ramifications of blowing and severely hurting one’s case versus loss of license (which may be modifiable by an interlock) because on a multiple offense the very real possibility of jail time becomes magnified and enhanced.

5. If one does provide a sample which is over the legal limit, some of the administrative penalties can be avoided and one always has the potential defenses to the machine as discussed in earlier posts regarding reliability.

So, what to do if arrested for DUI? It’s a personal decision which can be assisted if counsel is available to discuss the matter. Ironically, as an arrested driver pending a test, not only do you have the absolute right to speak with counsel prior to giving a breath sample, you have the right to a face-to-face communication with your attorney at the police station prior to blowing if you request same. Here’s where it gets fun because most police either do not know that you have this right or they will not allow you to exercise the right if you request it. Therefore, be sure to exercise your constitutional right and ask to speak with counsel prior to giving any test. Should the police deny your right to counsel, the evidence obtained or lack thereof will probably not be admissible against you in court.