This is probably the most common question asked of a DWI/DUI defense lawyer.
The short answer is: You should take the test with a few important caveats.
In most situations, test refusal is a more serious crime that is easier for prosecutors to prove at trial. Because test refusal is a crime, a lawyer cannot counsel a client to refuse the test and commit a crime. However, a lawyer can counsel a client regarding the consequences of taking or refusing the test and recommend that a driver obtains an independent, additional test at the driver's own expense.
Despite the general rule that a driver should take the test, the Minnesota Legislature has created a perverse incentive for certain first-time offenders with high alcohol concentrations to refuse the test, which can avoid the imposition of whiskey license plates and use of an ignition interlock device for one year. Refusal in this context also can reduce the license revocation period by 335 days.
Due to the complexities of the testing decision, it is best to speak with a lawyer before making the testing decision. Generally, a driver has at least 20 minutes to contact a lawyer before agreeing to take or refuse the test. The police provide directories of DWI defense lawyers. A person should call as many lawyers as it takes to reach one in the relatively short time period allotted for such calls. Lawyers generally do not charge a fee for these brief consultations. It can, however, be difficult to reach a lawyer during late-night hours.
Therefore, someone should keep calling and leaving messages until a lawyer is reached for a consultation. The consultation does not obligate the client to hire that lawyer to defend the case. It is simply a brief opportunity to obtain free legal advice prior to making a very important decision.
As discussed in more detail below, certain first-time offenders who have alcohol concentrations of 0.16 or more can avoid whiskey plates and use of an ignition interlock device for one year if they refuse to take the official test offered after arrest. In addition, the license revocation period can be as short as 30 days if drivers who would have an alcohol concentration of 0.16 or more refuse testing in a first-time offense. Thus, the legislature has created a perverse incentive to refuse testing in first-time DWI cases where the drivers' alcohol concentration is 0.16 or more.
A first-time offender who has a child under the age of 16 in the vehicle should not refuse testing because it will trigger vehicle forfeiture.
When a driver has at least one prior DWI conviction or DWI license revocation within the previous 10 years, the legislature has created no incentive for a driver to refuse testing, except in the case of a DWI accident causing bodily injury to another person.
The preliminary breath test (PBT) administered at the scene of the DWI arrest is not the official test. The PBT simply is a tool used to decide whether to arrest someone, but it is not admissible at trial to prove a driver's alcohol concentration. Due to its unreliability, the PBT lacks foundation to be admissible at trial, except in limited circumstances.
After a DWI arrest, drivers are taken to the police station or jail facility and offered an official test to determine one's alcohol concentration. There are three approved tests in Minnesota DWI cases. They are a breath test (via DataMaster DMT machine), blood test, or urine test. A driver will be offered one of these three tests. State troopers often will read the Implied Consent Advisory in the squad car, and a driver must decide to take or refuse the official test while still seated in the squad car. If a driver agrees to take the test, the test will be administered at the police station, jail facility, or a local hospital in the case of blood testing.
Can a Driver Choose which Test to Take?
The short answer is: No, with one important exception in the case of blood or urine testing.
Due to its ease and immediate result, most drivers are offered a breath test, which is administered at the police station or jail facility following a DWI arrest. A driver who is offered a breath test must either take the breath test or be charged with test refusal. A driver has no right under Minnesota law to require the police to offer a blood or urine test in lieu of the breath test. If a driver is physically unable to provide an adequate breath sample due to ailments like asthma or emphysema, the police must offer the driver a blood or urine test. Physical inability to provide a breath test is a rare occurrence. If a driver agrees to a breath test, he should make sure that he provides an adequate sample. Failure to blow into the machine adequately is considered test refusal.
At times, the police will offer a driver a blood or urine test in lieu of a breath test. This occurs when the breath machine is not functioning properly or when a driver is suspected of being under the influence of a controlled substance.
A driver who refuses a blood or urine test must be offered another type of test due to the invasive and sensitive nature of blood and urine testing. For example, a driver who refuses a blood test must be offered a urine or breath test before the police can charge him with test refusal. A driver who refuses a urine test similarly must be offered a blood or breath test before he can be charged with test refusal.
Because of the right to an alternative test, police officers often ask a driver if he will submit to a blood or urine test, giving the driver a choice between the two. If the driver selects a urine test, it is important that the driver provides a urine sample in a timely manner. It is common for people to experience "stage fright" in providing a urine sample. Failure to provide a urine sample in a timely manner can result in a charge of Test Refusal.
Should a Driver Take a Blood or Urine Test?
In most situations, it is preferable for a driver to submit to a urine test because the test result usually is lower, and a urine test is more susceptible to challenges in court.
Among the three types of tests, blood testing is the most accurate test to determine a person's alcohol concentration. Despite its accuracy, blood testing tends to provide the highest results and be the most difficult to challenge in court. This conclusion is based on the author's anecdotal evidence in defending hundreds of blood and urine cases.
Breath and urine testing are used as alternatives to approximate the amount of alcohol in the bloodstream. Alcohol in the bloodstream is what causes actual impairment in the brain. Alcohol in one's breath or urine is a byproduct of alcohol in one's blood.
Because blood testing is invasive, time-consuming, and costly, police generally prefer administering a breath or urine test that does not require a trip to the hospital. Breath and urine testing are designed to approximate one's actual blood alcohol concentration, but the State's scientists were careful to avoid, albeit imperfectly, the situation where breath or urine testing over-estimates one's actual blood alcohol concentration. Therefore, breath or urine testing tends to produce lower test results than blood testing under ideal conditions.
In addition, the actual alcohol concentration in a urine sample is reduced by one-third before it is officially reported in a DWI case. The one-third reduction is used to account for the tendency of urine tests to overestimate one's blood alcohol concentration based on urine pooling in one's bladder before testing. Such Pooling may overestimate one's alcohol concentration by 10 to 20% (or more), but the State reduces the alcohol concentration by 33% to account for this problem. Anecdotal evidence suggests that urine testing results in lower alcohol concentrations in the vast majority of cases.
Is It Ever Better to Refuse the Test?
With the caveat that a lawyer cannot counsel a client to refuse testing, the Minnesota legislature has created a perverse incentive for certain first-time offenders to refuse testing because such persons can avoid the imposition of whiskey license plates and ignition interlock device triggered by a test result of 0.16 or more, i.e., double the legal limit or more.
A driver who commits a true first-time DWI offense in his lifetime, i.e., has no prior DWI convictions or DWI license revocations, will need whiskey license plates and an ignition interlock device for one year if his test result is double the legal limit or more (0.16 or more). If the same driver refused the test, he would receive one year of license revocation but would not be subject to whiskey plates or use of an ignition interlock device. He would be entitled to obtain a limited license after completing 15 days of no driving. Furthermore, the one-year license revocation will be reduced to 30 or 90 total days if the driver is subsequently convicted of misdemeanor DWI or gross misdemeanor Test Refusal. Therefore, the legislature created an incentive for drivers to refuse the test if their alcohol concentrations are likely to be 0.16 or more in a first-time offense.
If a driver has a child under the age of 16 in the car during a first-time offense, the driver should not refuse testing because refusal will trigger vehicle forfeiture.
If a driver has one prior DWI conviction or DWI license revocation that is more than 10 years old, the driver will avoid whiskey plates and ignition interlock by refusing the test if his alcohol concentration is 0.16 or more. However, due to the old prior DWI offense, the driver will be subject to one year of license revocation where there are 15 days of no driving and 350 days of driving with a limited license. Thus, a driver with one old prior offense will not receive an administrative reduction in the license revocation to 30 or 90 days upon conviction of misdemeanor DWI or gross misdemeanor Test Refusal.
If a driver has two (or more) prior DWI convictions or DWI license revocations that are more than 10 years old, the driver who refuses testing can avoid the imposition of whiskey plates but will receive a revocation of at least two years and subject to driving only with an ignition interlock device.
The difficulty in this entire analysis is that a driver rarely knows definitively if his test result will be 0.16 or more. If a driver knows the result of a preliminary breath test administered at the scene, the result often is the best indicator of how high the official test of one's breath, blood, or urine will be. A BAC calculator can be a useful tool as well.
The average alcohol concentration in a DWI case is between 0.15 and 0.16 according to data released by the Minnesota Department of Public Safety.
Opting to refuse the test can trigger being held in jail significantly longer following an arrest because test refusal is a gross misdemeanor offense. If a first-time offender submits to the test and the result is 0.16 to 0.19, he will be charged with a misdemeanor DWI and will either be released from jail promptly or will not be booked into jail at all.
Should a Driver with a Prior DWI Conviction or DWI License Revocation within the Previous 10 Years Ever Refuse Testing?
No, the driver should submit to testing unless there is a DWI accident causing bodily injury as discussed below. Refusal will trigger vehicle forfeiture and the harshest license revocation period.
Under Minnesota law, DWI offenses are enhanced to more serious crimes if a driver has a prior DWI conviction or DWI license revocation within the previous 10 years.
For drivers with a prior DWI conviction or DWI license revocation within 10 years, test refusal will trigger vehicle forfeitureand an automatic two-year license revocation period, subject to whiskey plates and use of an ignition interlock device. In addition, test refusal charges likely will be easier for the state to prove at trial.
DWI Accident Causing Bodily Injury to Another Person
If a driver is involved in a DWI incident causing bodily injury to another person, including a passenger in the car, the legislature has created a significant incentive to refuse testing because test refusal is not an element of the offense of Criminal Vehicular Operation. Generally, in any DWI accident causing significant injuries to another person, the police will require the driver to submit to a blood test without obtaining the driver's consent. In that case, a driver does not have a choice to refuse the test, but a blood draw obtained without the driver's consent and without a warrant may be challenged in court.
A DWI accident causing death, great bodily harm, or substantial bodily harm is a felony level offense. A DWI accident causing mere bodily harm is a gross misdemeanor offense. These offenses fall under the Criminal Vehicular Operation (CVO) statute. In a CVO case, the State has to prove that a driver is under the influence of alcohol or has an alcohol concentration of 0.08 or more. A CVO case also can be based on the presence of a controlled substance revealed in a blood or urine test. Thus, the legislature has created an incentive to refuse chemical testing in a CVO case because refusal will make it more difficult for the State to prove that a driver was under the influence of alcohol or a controlled substance.
Can a Driver Request and Obtain an Additional, Independent Test in a DWI Case?
Yes, a driver has the right the right to request and obtain an additional, independent blood or urine test from a third party at the driver's own expense. The police cannot prevent or deny a driver from contacting a third party like www.additionaltesting.com from visiting a person in custody and administering an independent blood or urine test. Such a test typically will cost a driver about $400. If a driver wants an independent test, he must insist that the police allow him to contact a provider to visit him in custody. If the police prevent the additional test, the breath, blood, or urine test administered by the police may be excluded as evidence at trial due to the violation of one's right to an independent test.
An independent test should be administered as soon as practicable because alcohol dissipates in one's body. If a driver waits too long to obtain an independent test after submitting to the State's test, the usefulness of the independent test may be diminished significantly.
Can a Blood or Urine Sample Obtained by the Police be Independently Tested before Trial?
Yes, a person charged with DWI has a right to retest the blood or urine sample before trial. A retest will cost the person approximately $300. Doing so can be quite useful, especially if the alleged alcohol concentration is close to the relevant legal limits of 0.08, 0.16, and 0.20.
Will a Blood or Urine Sample be Tested for Both Alcohol and Controlled Substances?
Generally, no, unless the driver's alcohol concentration is below 0.08 or an accident causing bodily injury occurred.
The State's crime labs will only test a blood or urine sample for alcohol if the driver is suspected of being under the influence of alcohol, even if the driver also admits to use of a controlled substance. If the resulting alcohol concentration is 0.08 or more, the State generally will not test the sample for controlled substances because such testing is costly, time-consuming, and redundant in the typical misdemeanor or gross misdemeanor DWI case. If the case involves felony Criminal Vehicular Operation, the State likely will test a blood or urine test for alcohol and controlled substances. If the resulting alcohol concentration is less than 0.08 in a typical DWI case, a prosecutor may request the State's lab to perform testing for controlled substances.
Should You Take the Preliminary Breath Test Offered at the Roadside?
Yes, most drivers should take the preliminary breath test (PBT) that the police offer a driver at the roadside prior to arrest. A driver who refuses the PBT will be arrested even if his alcohol concentration is under the legal limit. The PBT can be useful to determine if a driver is likely 0.16 or more, and whether a first-time offender should submit to the official test at the police station or jail facility.
The result of the PBT cannot be used to revoke a driver's license or to impound license plates. It is simply a screening test that lacks sufficient reliability to be admissible at trial to prove a driver's alcohol concentration. However, if the driver ultimately refuses to take the official breath, blood, or urine test at the police station or jail facility, the PBT is admissible at trial to prove the elements of Test Refusal.
If a driver is involved a serious accident causing injuries to another person, the driver should not take the PBT and should speak with a lawyer before he decides whether to submit to the official breath, blood, or urine test at the police station or jail facility. The legislature has created a substantial incentive for a driver in an accident causing injury to refuse all testing due to the elements of Criminal Vehicular Operation.
Drivers who refuse both the PBT and the official often receive a "probable cause hold" when booked in jail, even in a first-time offense. These drivers will either be forced to post maximum bail or bond ($12,000) or will wait one to four days to be released by a judge or by the expiration of time limits.
After Arrest, Should You Talk with Police about the Facts of Your Case?
Absolutely not. Drivers who are arrested for DWI should remain calm, polite, cooperative, and quiet. Drivers must cooperate with the testing decision, i.e., take or refuse the test, but drivers should not discuss the facts of their case with the police or with anyone other than a lawyer after a DWI arrest. Anything a driver says can be used against him in court.
Police generally do not give a driver a Miranda warning until after the driver takes or refuses the official test. After the testing decision, a police officer often will read a Miranda warning to a driver and ask the driver if he will agree to answer a few questions without a lawyer present. A driver should politely decline to answer any questions preceded by a Miranda warning. The police will not treat a driver any better if he agrees to such questioning. It is a common misconception that being "cooperative" with these questions will help a driver avoid jail time.
A driver arrested for DWI should speak with a DWI defense lawyer prior to deciding whether to submit to testing. The testing decision is more complex than it may appear. A lawyer will provide a free consultation that can significantly impact one's case. There is virtually no downside to obtaining a free consultation before the testing decision. Regrettably, approximately 80% of people arrested for DWI do not attempt to consult with a lawyer before deciding to take or refuse the chemical test offered by the police.