Why Are People Falsely Accused Of Refusal To Take A Breath Test?

Interviewer: A lot of people say they were accused of refusing to take the breath test at the police station. However, they did not refuse it. They believe they tried. How often does that happen? What do people say that tells you they actually did try to do the test?

Shannon: Under the Implied Consent Law, you consent to this breath test. The law says if you refuse, there is an additional penalty. There are choices when faced with a breath test. You can take it; and we will discuss why you may want to consider not taking it.

You can also ask for additional time to make a phone call. Under Implied Consent statutes, you are entitled time to discuss your choice, or your options, with someone. It does not necessarily have to be an attorney.

If, at that time, you do request to speak with someone, the officer needs to afford you a reasonable period of time, and privacy, to make that phone call. Sometimes the person is upset at the point the officer is requesting a breath test. The person may request further explanation or additional time to consider their options.

Officers just read what is in the Implied Consent paperwork. They are not lawyers. They are not necessarily obligated to advise what the best options are. In some cases, they can hit refusal if they feel you are just dragging things out.

The experience of some folks has been that they did not actually refuse. They were just asking additional questions. I have had that situation with a number of different cases. In those situations, the analysis is: Was there an unreasonable delay; Were you just asking for additional time to consider your options; or Were you asking for time to make a phone call?

If you are asking for time to make a phone call and you are not afforded the time or privacy to make the phone call, then the refusal is no good.

Interviewer: Under the statute, how long do you have to think, or make a phone call?

Shannon: It is a reasonableness standard. There is not an exact timeframe. However, most agencies and officers afford people 20 minutes. Sometimes people request to make the phone call. They go over there. They try someone. They do not get them. They come back. They say, “They were not available.” Then they proceed from there.

Interviewer: To avoid a refusal, would it help people to request a specific period of time? Rather than say, “I need to think about it;” is it better to say, “Please, can I have 15 minutes to make a phone call?”

Shannon: I think it definitely improves your argument that you are considering what to do. It is not an actual refusal. The officer has to show that it was an actual refusal. Under the law, it absolutely cannot be a refusal if you say, “I need to make a phone call. I need privacy to do that.” You better your chances by being clear in your statement to the officer.

Shannon I. Wilson, Esq.

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