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When a police officer conducts a traffic stop, the officer will observe whether the driver demonstrates any behavior or objective signs that would indicate impairment from alcohol or any
controlled substance. If the officer decides to conduct a DUI investigation, many people encounter a difficult dilemma.
Is it better to submit to a breathalyzer test or to refuse it?
There is no easy answer to that question. The answer will largely be guided by the circumstances of the traffic stop and the preferences of the driver. In order to make an informed decision regarding the consequences of submitting or refusing to submit to a breathalyzer test, it is important to understand that enforcement of DUI penalties are sought by two different entities.
First, is prosecution by the State Attorney's Office in criminal court, and second, is the Bureau of Administrative Reviews of the Department of Highway Safety and Motor Vehicles.
Breathalyzer results may be used as evidence in a criminal proceeding. If a driver submits to a breathalyzer test and the driver's Blood Alcohol Content is higher than .08 percent, then the driver is going to have a far more difficult time beating the DUI Charge at trial.
The State Attorney will seek to introduce evidence of the arresting police officer's observations of the driver's behavior, appearance as well as his driving pattern immediately before the traffic stop. A capable criminal defense attorney may be able to call those observations into question to the point of making a conviction far less likely.
However, if the driver submits to a breathalyzer test and the test results show the driver to have a Blood Alcohol Content higher than .08 percent, the introduction of that evidence by the State Attorney will significantly increase the likelihood of a conviction. If the breath results are higher than double the legal limit of .08 percent, then the penalties sought by the State Attorney will be enhanced further.
It is important to note that the refusal to submit to the test becomes a separate criminal offense if the driver has already refused to submit on a prior occasion in a separate DUI investigation.
It is also important to consider the punishments that may be imposed by the Department of Highway Safety and Motor Vehicles when a driver is deciding whether or not to submit to the breath test. After a formal hearing, the DHSMV has the authority to impose more severe penalties for a refusal to submit to a breath test. If the driver submits to the breath test and the results are higher than .08 percent, then the DHSMV has the authority to suspend the driver's license for six months for a first DUI and a full year for a second DUI.
A driver who refuses to submit is subject to a one year license suspension for a first refusal, and an 18 month suspension for the second time the driver refuses a breath test.
Furthermore, a driver can apply for a hardship license while he's serving his DUI suspension. If a driver submits to the breath test then he may apply for a hardship license after 30 days of the suspension. However, if a driver refuses a breath test, he may not apply for a hardship license until after 90 days of his suspension have been served.
While refusing a breath test may help a driver's prospects of achieving a favorable outcome in criminal court, a refusal may also result in a longer license suspension by the DHSMV.