What actions or inactions by the driver will be deemed a refusal?
What constitutes a refusal? The most common acts or non-acts of the driver that result in the officer marking “Refused” on his report thereby triggering the one year revocation notice are:
1) The officer requests the driver to submit to one of the authorized tests and the driver simply says “no” or words to that effect.
2) When ostensibly consenting to the breath test, the driver in the opinion of the officer is not following instructions as to how to blow into the tube of the machine that will allow the machine to measure the alcohol content of the driver’s breath. The machine will not give a “read”, and the officer will usually note in his report that the driver was simply “puffing” into the machine and not drawing a breath from his lungs to blow in the machine as instructed.
3) The driver gives an equivocal answer. The officer interprets the driver’s response as not exactly saying “yes” and not exactly saying “no” The officer will simply note the exact response in his report and mark it as a refusal.
4) The driver conditions his consent. For example, the driver says to the officer “yes, I will take the test but only if you agree not to charge me with driving while intoxicated.” The driver may mistakenly believe he has the right to make a phone call to whomever he wishes before giving consent or refusing and tell the office that he wishes to call his mother/father/friend, etc. before answering yes or no. The officer marks “Refused.”
5) The driver says no thank you to the request for a blood test but informs the office that he will happily do the breathalyzer test, or the driver says I won’t take a breath test, but I will take a blood test. The officer marks “Refused.” The driver does not get to choose which test he will take. He must take the test requested by the officer, or he has refused the test.
6) The driver remains silent, refusing to answer yes or no. The driver has refused.
In part 2 of our last post on this subject, November 19, 2012, I opined that generally a driver suspected of driving while intoxicated who is asked to take one of the tests authorized by statute (usually the breathalyzer test) will better off taking the test. For the driver who has been charged with driving while intoxicated before, the decision of whether to give consent to one of the tests requested by the officer becomes much more difficult.
Before finding himself in the situation where he has to make this decision, it is crucial that the driver know his own driving record. Of course it is easy if the driver knows he has never been accused of driving while intoxicated; however, when the driver has been previously arrested for an alcohol/drug-related driving offense, he must know the precise outcome of that case in order to make a rational decision, or to enable any attorney he may consult to be able to help the driver make the best decision. If the driver knows for a fact that the prosecutor refused to prosecute the DWI case, then the driver falls into the category of having no previous alcohol/drug-related driving contacts for the purpose of reaching a decision of whether to consent or not consent.
If through plea negotiations, the previousDWI charge was amended to a non-alcohol/drug-related driving offense, for example careless and imprudent driving, then the driver still falls into the category of no prior alcohol/drug related driving contacts for purpose of giving or refusing consent. When the driver has been convicted of or entered a plea of guilty to DWI or to the lesser offense (on paper at least) of driving with a blood-alcohol level of .08% or higher, the decision of whether to consent or not consent becomes more complex. A person in this category is considered a “prior offender” and whether to consent or refuse requires legal advice from an attorney who routinely practices DWI defense and who is very familiar with the practices and policies of the prosecuting authorities in the jurisdiction of arrest. The matters the “arrestee” and the attorney he consults must consider will be discuss in the next posting, December 3, 2012.
**DISCLAIMER: This article is intended to provide general information and is not and should not be taken as specific legal advice or as creating an attorney/client relationship with any reader. Any specific situation requires specific legal advice. Anyone facing a legal problem should contact an attorney for specific legal advice and should not rely solely on any information contained in this article. An attorney licensed in the state of Missouri writes all articles and all legal information discussed addresses the law as it stands in Missouri at the time of writing. Not only may there be significant differences in how the law would be applied in Missouri versus other states, the law is not static and can change over time. Nothing in this article is intended to have any relevance outside of the state of Missouri and should be taken as general information only, not legal advice.