Published on February 7, 2010
In many DUI cases I have seen where the client refused to take the breathalyzer, the defendant also decided to take the field sobriety tests because he felt like he could “pass” them. In cases like those, unless the field sobriety tests were not administered in substantial compliance with NHTSA standards and consequently suppressed, the defendant’s bad scores on them would be coming into evidence. As I stated in my last column, there is no such thing as “passing” these tests.
What people also need to consider is that even without field sobriety tests, the police officer is still allowed to testify about his observations of the defendant. The first things this can include are an accident or the defendant’s erratic or unusual driving. This can include such things as weaving outside the lane, taking an unusually long time to stop after the officer puts on his flashing lights, parking at an irregular angle, and a number of other driving mistakes.
The second thing this can include is things that the defendant does after the stop such as taking an unusually long time to produce a driver’s license, proof of insurance, and registration (or fumbling through the wallet to find these). This also includes things like how the defendant exited the vehicle and walked to the rear of the vehicle. If the defendant does things like use the door to pull himself out of the vehicle and brace himself on the vehicle while walking along it to the rear, the officer’s observations of these things become evidence in court. Other things this can include are an unsteady walk, dropping things stupidly, being unable to stay steady while standing, and other physical errors.
Third, don’t forget that if you have slurred speech, bloodshot or watery eyes, those will be used against you in court as well.
Fourth, if you refuse to take the breathalyzer this triggers an automatic one-year driver’s license suspension.
Additionally, if you have one or more prior DUIs within the last 20 years they can be used to enhance the penalties against you in various ways, depending on your DUI history. And with enough prior DUIs in your history Ohio law now allows for forced blood draws.
Finally, refusing to take the breathalyzer when you are arrested for DUI will often make prosecutors reluctant to consider reducing your charge. If you refuse to take the breathalyzer and you want to avoid a DUI conviction, then you need to be ready to pay the money it takes to hire an attorney who knows how to defend these cases. As I have stated in the past, good DUI attorneys are definitely not cheap. You won’t be able to just walk into court and have your DUI charge dropped. If you want to avoid a conviction it will take quite a bit of work. Just something more to think about.
James Bogen is an attorney in solo practice in Cincinnati. Any questions or comments can be directed to him at attorneybogen@yahoo.com.