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Attorney Ask an WITH BRIAN K. SMITH

Q:I spent New Year's Eve out with friends at a local bar where I had a few beers over several hours. On the way home, I was pulled over by a cop (he said I was weaving in and out of the lane) and he administered a breathalyzer - which he said registered above the legal limit. I didn't think that was possible based on the number of drinks I had had and how long I had been at the bar. Nevertheless, I was given a DUI. What rights do I have in such a scenario? What would have happened if I had simply refused the breathalyzer?

A: Your first arrest for operating a vehicle while intoxicated can land you in jail for up to one year and result in a fine of up to $5000 dollars so it’s important that you consult with an experienced attorney if arrested.

If a law enforcement officer suspects you have been drinking and driving, the officer will ask you to exit your vehicle and perform field sobriety tests. These allow a police officer to determine if you are impaired. The one-legged stand and the walk and turn are examples of field sobriety tests. Most people would have difficulty performing these tests completely sober. Agreeing to perform these tests will only provide the officer and the prosecutor with more evidence. There are no penalties for refusing field sobriety tests and you should tell the officer politely that you will not perform them.

The officer will next ask you to blow into a portable breath test that the officer has at the scene. The portable breath test is not reliable and is not admissible in a courtroom. There is no penalty for refusing the portable breath test and you should politely decline to take it.

Finally, the officer will read you Indiana’s Implied Consent Law and ask you to submit to a chemical breath test down at the police station or jail. This test is more reliable and generally admissible in court. The decision whether to take a chemical breath test at the station is a difficult one and you do not have a right to consult with an attorney prior to taking or not taking the test.

Taking the chemical breath test can potentially provide strong evidence of your guilt or innocence. If you refuse the chemical breath test, your driver’s license will automatically be suspended for one year. However, if you refuse and the prosecutor has no field sobriety tests or chemical breath tests, it can be hard to prove their case in a courtroom.

An experienced attorney can help further explain your rights and will help minimize the impact this arrest has on your life.

BRIAN K. SMITH

ATTORNEY AT LAW 915 MAIN ST. SUITE 102,EVANSVILLE, INDIANA 47708 (812) 422-1650 · BRIANKSMITHLAW@GMAIL.COM

Disclaimer: The above information is not legal advice and should not be taken as legal advice. Application of the law is highly fact sensitive and readers should consult with an attorney on legal matters.