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   >>Do you want to know what and how Police are trained about REFUSALS of the Breath Test?

 

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  >>Refusing the test:

 

YOU CAN CHANGE YOUR MIND!  The Supreme Court says YOU can!  See:

 

Baldwin v. State ex rel. Department of Public Safety

 

     AND

 

Rick v. State ex rel. Department of Public Safety

 

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BREATH TEST REFUSALS: WHY MOST ARE IRRELEVANT

 

By J. Gary Trichter

 

 

 

Breath Testing

Oklahoma utilizes the Intoxilyzer 5000-D.

BREATH TEST "REFUSAL"

If you are arrested for a DUI or APC or DWI (Driving While Impaired here in Oklahoma), you are going to be requested by the arresting officer to submit to one of the approved types of chemical tests: breath; blood; saliva; or, urine. This is called the "Implied Consent Law". Whether you know it or not, you have already agreed to submit to a test, if ever requested by a law enforcement officer, once you got behind the wheel of your car. Of course, there are clear times and ways in which an officer has the right to request one of these tests. He can NOT just stop anybody without reasonable grounds. Further, before you can be asked to submit to any test, you must be arrested FIRST. Each of these types of tests is listed in the statutes concerning the Implied Consent Law. However, the most common one is the breath test on an Intoxilyzer 5000, as it is the ONLY machine used here in Oklahoma.

Prior to asking you to submit to a breath (or any) test, the policeman is supposed to read you what is called the "Implied Consent Notice" or " Warning". This "Warning" is NOT the Miranda Warning or "reading you your rights". The failure to read you the Miranda Warning, generally, means nothing in a DUI or APC case. This Implied Consent Warning is an eight (8) point list of items which includes notifying you that you have been arrested and that you are being requested to submit to a test. It includes what will happen to your license if you have a .08% BrAC (breath alcohol concentration). It also advises you that you can refuse the test. Failing OR refusing the test causes the SAME problems to your driverís license. It revokes it . . . period.

This warning that is SUPPOSED to be read, in its entirety, is:

1. You have been arrested and the arresting officer has reasonable grounds to believe that you were driving or in actual physical control of a motor vehicle while under the influence of intoxicants.

2. You are requested to submit to a test or tests for the purpose of determining the presence and concentration of intoxicants in your body.

3. The test will be a (BREATH)(BLOOD) and will be administered at no cost to you.

4. In addition to this test, you may at your own expense have an additional test of your choice, provided that a sufficient quantity of any specimen obtained shall be available to the state for testing.

5. You are not entitled to consult with an attorney prior to making your decision on whether to submit to the stateís test.

6. You may refuse the stateís test, but as a consequence your driverís license will be revoked or denied by the Department of Public.

7. If you consent to testing, are 21 years of age or older and the test result is .08 or more alcohol concentration, your driverís license will be revoked or denied by the Department of Public Safety. If you are under 21 and consent to testing and the test result is 0.02 or more alcohol concentration, your driverís license will be revoked or denied by the Department of Public Safety.

8. Will you take the stateís test?

This is not supposed to be told to you by memory or just told parts of it. This warning is supposed to be READ to you, and all of it.

Remember: the cop is RIGHT about not being able to speak to an attorney before deciding to take the test. You donít. This is a decision that you must make without counsel. And, believe it or not, the courts have ruled that taking the test OR refusing the test is NOT protected by the "right to remain silent". A refusal is admissible against in ANY legal proceeding!

Most policeman - if they read this Warning, at all - read it very fast. It is NOT uncommon for a person to NOT understand what has been read to him OR the importance of it. Consequently, when the person asks to have it re-read or explained, the officer will simply take that confusion or misunderstanding as some"game" that the person is playing and put it down as a refusal.

If you decide to refuse the test, you have the absolute statutory right to do so. If you refuse, no further discussion or pressure should be had on the topic from the officer to you. The exception to this general rule/right is if you were involved in an accident where someone was killed OR seriously injured (as long as it was not you). In that case, the police will forcibly draw blood from you for evidence.

At any Hearing to revoke your driverís license for this refusal, the police do not have to prove very much. Your driverís license WILL BE REVOKED, if the Department of Public Safety ("DPS") finds that the following is present in your case:

1. You refused to submit to the test or tests, and

2. You were informed that your driving privileges would be revoked or denied if you refused to submit to the test or tests.

Thatís ALL that is required to be proved and your license is GONE! Plus, the "burden of proof" or the amount of evidence that is required is only preponderance of the evidence. This means "more likely than not". Of course, there must be evidence of a valid arrest, too. This includes the requirement that the officer had probable cause to make the arrest.

Also, your refusal of the test(s) can - and WILL BE - told to the court and jury in your criminal case for the DUI or APC. This is usually communicated in a fashion that it was an admission of guilt. If a person was sober and NOT drunk, who wouldnít take the test? What did he have to hide? Etc.

A VERY important question that is "hidden" in the above is whether you DID, in fact, refuse. You can change your mind after you refuse. Many times, people do this. They think about it and ask if they can "take that test now". If the officer says, "nope, you missed your chance" this is the strongest defense to the admission of this refusal into evidence AND the revocation of your license.

The Supreme Court has held that a person can change his mind or "recant" the refusal if he does so:

(1) within a very short and reasonable time after the prior first refusal;

(2) when a test administered upon the subsequent consent would still be accurate;

(3) when testing equipment is still readily available;

(4) when honoring the request will result in no substantial inconvenience or expense to the police; and

(5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.

If the cop will not then GIVE you a test, the refusal evidence is OUT!! If you did not refuse, the license is safe. If you did not refuse, the D.A. can not tell the jury. Therefore, be sure to tell your attorney is that is what occurred!!

FOOTNOTES

1.  This in the Oklahoma Statutes located at 47 O.S. ß751.

2.  This is a VERY important defense point on any DUI: the illegality of the arrest.

3.  This is in 47 O.S. ß751 through ß759.

4.  Look at the license information on the "Penalties" section of this web page for lengths of revocation of license, depending upon a personís prior record.

5.  The officer will tell you WHICH one of the two that he wants you to take. It is up to HIM, not you as to which is to be taken. However, note the NEXT thing that he is supposed to read you: You may have an independent test of your choosing AFTER you submit to the one he first requests of you.

6.  See 47 O.S. ß753.

 

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