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Troy MI License Restoration Blog

Thursday, March 12, 2015

REFUSING A BREATH TEST: THE REST OF THE STORY

Recently I wrote an article regarding the ramifications of refusing a Breathalyzer test. Due to the rather punitive penalties for such a decision, I would never opine on whether or not it is a wise thing to do.

If you are being stopped for whatever reason and you had been drinking previously, a number of considerations must be evaluated rather quickly when debating with yourself regarding taking the Breathalyzer or refusing.

How much have you had to drink over what period of time? When, what and how big was your last drink? How big are you (or small)? What is your BMI (body mass index)?

If you are requested to take the test and refuse, how long will it take for the officers to get a search warrant signed by a Judge? After that, how long will it take the officers to get to a facility to have your blood drawn? Are you way out in the boonies? Is your blood/alcohol level going down or up? This would be determined by judging how long before the blood draw all the questions posed above.

Clearly, with all there is to consider and weigh, it would be rather impossible for most anyone to accurately conclude the best course of action; BECAUSE, even if you are determined to be under the legal blood/alcohol limit and refuse the test, you can still be charged with refusing the Breathalyzer!!

That’s right, even if you are stone cold sober, if you refuse to take the test, you can still be charged with a refusal. And what are the ramifications of doing that?!? Not good!! If you request a hearing on the issue and win; GREAT, but the odds of this happening are not good. Basically the only way you win these types of hearings is if the officer does not show up for the hearing. They generally do. But, when facing a one year suspension (a second refusal within seven years is a two year suspension) because of the refusal what have you got to lose?? Sometimes the officer has other things that are more important. Sometimes they are not notified, by mistake. Maybe they are on vacation. There are endless scenarios that can result in the charge being dismissed at the hearing so, unless driving is not that important in your life, I usually suggest that the request for hearing be filed.

And it must be within 14 days of the ticket or you lose your window of opportunity.

The primary decision being made when deciding whether or not to take a Breathalyzer is, is maybe avoiding an OWI worth getting a six month suspension for the refusal?? What if the gamble doesn’t work and you end up with both? That is, you gamble on the timing because you think its been long enough since your last drink and its going to be a long time, again, in your estimation of things, before they can get your blood; they get your blood and your over the limit. Not only do you get slapped with the OWI but also the refusal....YOU LOSE….big time!!

Generally, not being a gambling man, I say just submit, no sense in making a potentially bad situation worse. Then, be as polite as possible. No sense in getting an A/R/O piled on (assaulting/resisting/obstructing).

At any rate, call me to discuss your options and best course of action, the sooner the better.

The Law Offices of Martin Lievois in Troy at 248-419-1566 or in Flint at 810-250-4550.

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| Phone: 810-232-3223
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| Phone: 248-498-2525

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