Should You Take The Breathalyzer Test Or Should You Refuse

The Basics

If you are stopped for a DWI (Driving While Intoxicated), BAC (Blood Alcohol Content) or DUI (Driving Under the Influence), you may be asked by the police officer to take a breathalyzer test. What should you do? Submit to the test and give the police objective evidence of intoxication or refuse to take the test and lose driving privileges in hopes of winning the case at trial?

When you drive or have been driving a motor vehicle in an intoxicated condition, you may be charged with DWI (Driving While Intoxicated), BAC (Blood Alcohol Content), or DUI (Driving Under the Influence). These offenses may be charged as state or municipal offenses. Being intoxicated in Missouri is defined as having a blood alcohol concentration of eight-hundredths of one percent (0.08%) or more. See Section 577.001 Revised Statutes of Missouri

Any person who operates a motor vehicle upon the public highways automatically gives his consent to a test of the alcohol or drug content in his blood, according to Missouri law. Section 577.020 Revised States of Missouri. A police officer will mostly probably request that you take a breathalyzer test if he has probable cause to think that you are intoxicated.

Should You Take the Breathalyzer Test Or Should You Refuse?

There is no good answer to this question because there are consequences either way. If you have been drinking, the breathalyzer test may indicate that you are legally intoxicated and the test results are objective evidence of that intoxication. But if you refuse to take the breathalyzer test, under Missouri law, the officer can take your driver’s license and your driving privileges are suspended until you fulfill certain requirements.

If you do not take the breathalyzer test, the charging authority does not have objective test results. The evidence would be the police officer’s observations of you and the results of any field sobriety the tests he may give you by the side of the road (reciting the alphabet, pointing your hands to your nose, walking toe to heel, to name a few). These are subjective tests and therefore they constitute subjective evidence. In a hearing or trial, it would be your word against the police officer’s word. You need to make this decision at the time of the request. ­­­­

When You Are Charged With DWI/BAC/DUI, Two Cases Are Involved – A Criminal Case And A Civil Case

There is a tricky part to the charges of DWI, BAC or DUI: You face both a criminal case and a civil case. The criminal case is brought by the state or municipality. If it is brought by the state, the charge is a misdemeanor. If it is brought the municipality, the charge is a municipal ordinance violation. It carries a possible penalty of incarceration or probation, successful completion of the substance abuse program known as SATOP (Substance Abuse Traffic Offender Program), in addition to other possible requirements recommended by the prosecutor.

The civil case is brought by the state and carries its own consequences: 1) points assessed against your driver’s license, 2) suspension or revocation of driving privileges, 3) obtaining insurance, and 4) proof of financial responsibility (SR22).

You may choose to fight the criminal charge and/or the civil case. The burden of proof in the civil case is lower than the burden of proof in the criminal case. In the civil case, the state need only show, by a preponderance of the evidence, that the officer had probable cause to arrest you for an alcohol-related offense and that you were driving in an intoxicated condition as defined under Missouri law. Whether or not you lose the civil case, you must still resolve the criminal case.

In the criminal case, the burden of proof is higher than it is in the civil case. In the criminal case, the state or municipality must show, beyond a reasonable doubt, that 1) you were driving a motor vehicle and 2) you were in an intoxicated or drugged condition, to the extent that your blood alcohol content was 0.08 % by weight of alcohol in your blood, or that by other field sobriety tests, the evidence shows that you were legally intoxicated.

Remember that these two cases are separate and independent. It is a good idea to discuss the options with your attorney. You may choose not to fight the civil case. You may choose to plead guilty to the DWI/BAC/DUI if the offer by the state or municipality is attractive.