An officer may request that you take a breath test (breathalyzer) if they suspect that you have been driving under the influence as part of a roadside sobriety test. They may also request this test after you have been arrested and charged with a DUI offense.
Contrary to popular belief, breathalyzer test results are admissible in court if the correct procedure for administering the test was followed by the officer performing the test. Requesting this type of test after a DUI arrest or charge is a means to prove or collect more evidence that an individual was driving under the influence.
However, you have the right to refuse to take the breathalyzer test although it is not advisable to do so. Refusal can be viewed as further proof that you were driving under the influence. Certain penalties may also apply to drivers who refuse to take a breath test.
These penalties vary from state to state but in general may involve a driving license suspension, fines and/or some jail time, depending on whether a judge finds the offender guilty of the charges brought against them. The sentence may also be harsher for second or third offenders.
It is not requisite for a lawyer to be present for a breathalyzer test and it can be administered even if you have requested a lawyer and they have not arrived. If at all possible, it is advisable to speak to a lawyer before submitting to a breath test.
However, license suspension and other penalties may only come into effect after a specified period of time within which it is advisable to contact a lawyer to see whether you should contest the DUI charge and present a case as to your refusal to take the breathalyzer test.
Once again, it is not recommended to take this route, even if you have been drinking or were under the influence of another substance while driving. Rather submit to the test and fight the DUI charge using another type of defense with the assistance of a DUI defense lawyer or medical malpractice attorney.
The case may be dismissed due to an officer not following proper procedure during the arrest, charging or test administration process. While breathalyzer tests are accepted in court, they are not always 100% accurate and this can also be used as a defense. It is recommended to request a blood test or have an independent test administered if you feel that the breathalyzer test returned an incorrect reading.