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DUI Should You Take the Breath Test

People always ask me if they should take the breath test or not if they are ever pulled over by the police and suspected of drinking & driving. Unfortunately, the answer is "it depends" here's why: Some attorneys believe that you should always refuse the breath test, because you are only giving the police evidence against you that will help convict you. That is true if you are going to fail the breath test. But, consider this, if you refuse the breath test, you will automatically get a license suspension for the refusal. Also, the prosecutor is not likely to offer a "reckless" or a "wet reckless" just because you refused. The prosecutor is going to examine other evidence, i.e., slurred speech, blood shot eyes, odor of alcoholic beverage, whether you are steady on your feet or not, etc. If you refuse the breath test, you will likely have to convince a jury (or a judge in a bench trial) that you are not guilty of DUI. In a jury trial in Kentucky, the jury will decide whether you are guilty, then they will decide your punishment. For first time offenders convicted, the jury will select a range between 2-30 days in jail and that will be how many days you do in jail.

Now consider this, if you refuse in Kentucky, your license will be suspended automatically at your arraignment. That means the clerk will take your Kentucky driver's license and you will not be able to legally drive until your case is resolved. This could take several months since you will likely need a jury trial to try and convince a jury that you were not guilty. So, if you can go 2-4 months without a driver's license and no driving privileges at all, then maybe you should refuse the test and go to trial. But, remember the prosecutor can also use the other evidence mentioned above, slurred speech, etc.

I ask my clients what they do for a living. If they are going to get fired by their employer for a DUI conviction, then it is likely better to try and fight the DUI to try and save your job. Refuse the test, just be willing to take the bus, a cab or have someone drive you around for several months or so. However, other clients need their license ASAP. Sales people and those that drive a lot for their job may not be fired for a DUI, but they will be fired if they can't drive for work purposes.  Under those circumstances, it may be better to take the breath test, because a refusal of the test could result in a pre-trial suspension without privileges for several months.

Bottom line is do not drink & drive. Also, if you really only had 1-2 drinks you should probably take the breath test as you might pass the PBT and the officer could let you go. But, if you are on the border and are not sure if you "had one too many or not," consider the above and think about the individual consequences a DUI or a license suspension would have on your life and your employment before taking the breath test. The problem is that these decisions can be difficult with a buzz, so it is best to call or a cab or don't drive at all.

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The Law Offices of Christopher Jackson
121 East 4th Street
Covington, KY 41011

Toll Free: 888-811-3247
Phone: 513-861-8000
Phone: 859-261-1111
Fax: 859-261-0888
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