subject: Indiana Dui Facts: Should You Take A Breath Test? [print this page] Most criminal DUI courts nationwide in association with departments of motor vehicles have some variations of mandatory license suspensions imposed if it is determined by a criminal DUI court judge that someone suspected of drunk driving has refused to submit to a breath test offered. This breath test and drivers obligation to submit to such a test is often known as implied consent. Implied consent in simple terms basically is the concept that operating a motor vehicle on state roadways is a privilege and not a right. As a result, even if one were to be found not guilty of drunk driving under a criminal courts dui laws, depending upon the arresting state, it is still possible to lose ones license for a fixed period of time simply for refusing to submit to such a test.
Unlike a standard of proof of, beyond a reasonable doubt, that a prosecutor must establish to find one guilty of a dui offense, in most, if not all dui law jurisdictions, the proof required to suspend ones license for refusing to submit to a breath test under the doctrine of implied consent is by a preponderance of evidence. Or in other more realistic terms, the police officers word versus the word of one suspected of DUI as to whether a breath test was knowingly refused after the suspected drunk driver was advised of his obligation to submit to such a test and the mandatory license suspension that will result if the breath test is not submitted to. It is not uncommon for a police officer to simply read implied consent wording off of an index card in a court of law to meet such a burden of proof.
Dont I have the right to a DUI attorney under
State DUI laws before deciding to take a breath test?
No. In most if not all criminal law courts the results of a certified breath test as to whether one is above the states legal limit for DUI is considered, non testimonial. This generally means that breath test results are evidence based on what youve done and not what youve said. Since performance of field sobriety test and breath test results for DUI are not based on words said they are not usually considered testimony for purposes of a suspected drunk drivers right to have a dui lawyer present in making the decision as to whether to submit to such a test. As always, it is good practice to consult with an experienced dui law attorney in your state as to the application of implied consent laws and a drunk driving officers limitations in acquiring potentially incriminating evidence.
Generally, many dui law attorneys would agree that often a decision as to whether one should submit to a breath test is based upon what one fears more; criminal law penalty or mandatory license suspension.
If, for example, one prosecuted for DUI has a lengthy criminal history of drunk driving or other criminal crimes, such a person may wish to deprive the state prosecutor of a valuable piece of evidence, namely a breath test result, where one has no alternative but to roll the dice at trial or face lengthy imprisonment potentially longer than a potential license suspension imposed.
However, in the majority of DUI law cases, if a person is facing a first time or sometimes a second time dui offense, it is often the case that a license suspension imposed up to 10 times longer simply for a breath test refusal is not worth the risk, especially where the suspected drunk driver in consultation with a dui law attorney is not facing mandatory jail time, and does not believe it is in his or her best interest to go to trial.
