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To consent or to not consent, that is the question!

To consent or to not consent, that is the question!

Hopefully, you are never put in this position, but if you are here is a common scenario that recently occurred at a party I attended primarily by attorneys and law enforcement. Not too long after I arrived, I was having a conversation with a number of law enforcement and attorneys, when one of the attorneys (who does NOT practice criminal or Operating While Under the Influence of an Intoxicant law) asked a variation of a question I have been asked untold times by lawyers and non-lawyers alike:

"George, I'm going to have two glasses of wine and then drive home. On the off chance that I am pulled over by police and they ask me to give a sample of my blood or breath, should I consent?"

The conversation stopped, even the law enforcement participants as I gave her my answer: "Yes and No." After some good natured "ribbing", especially from law enforcement, about giving such a lawyerly answer, I went on to explain.

First, the "No" answer. By refusing to give a sample of your blood or breath (I am not aware of a law enforcement agency that asks for urine as the test procedure is the most inaccurate of the three), you are depriving the state of the most critical piece of evidence in prosecuting an Operating While Under the Influence of an Intoxicant/PAC charge. The state is left with driving patterns, smell of alcohol, speech patterns and the like. It will give you (and hopefully the experienced Operating While Under the Influence of an Intoxicant/PAC defense attorney you retain), the best chances of beating the charge either through negotiations or trial. This becomes especially critical when you reach the 2nd through 6th offenses, which carry mandatory minimum jail time, and with the 7th and subsequent offenses, which carry mandatory minimum PRISON sentences. However, by refusing, under the implied consent law, you are all but guaranteed and Administrative Revocation that will last 1 year. Furthermore, even if you beat the substantive charge (either by motion, agreement or jury trial), the refusal counts as a prior conviction for purposes of any future drunk driving charges! If the refusal goes unchallenged or the challenge to the validity is lost in court (the subject of a future blog), if that person is charged with Operating While Under the Influence of an Intoxicant/PAC in the future, the refusal will count as a prior conviction.

Second, the "Yes" answer. If you are confident in how much you have consumed and the time period over which you consumed alcoholic beverages, most people should have a pretty good feel for whether they are "intoxicated" or not. I alcohol test result will be the surest and earliest way of preventing the charges from even being issued. Further, even a test result over the legal limit does not prevent challenging the admissibility of the test result, typically on the grounds that the original traffic stop was illegal or the officer did not have sufficient evidence to ask you to provide such a sample, or prevent presentation of the "Bell Curve" defense. All of these are lengthy topics and will be dealt with in future blogs. Finally, another reason to consent is the impact of a refusal can have at the time, i.e. administrative revocation, and for the future, counting as prior conviction. See above.

I concluded this conversation (and this blog) by stating the obvious: the easiest answer to your question is don't drink and drive. If you don't drink and drive, you will never be put in the position of having to supply an answer to whether to consent or to not consent.

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