Joe Suhre | August 8, 2017 | OVI Defense
There are three types of chemical tests an officer can request from a person arrested for OVI:
- and urine.
By far the most common test is the breath test. This is because most police departments have their own machine and the test results are immediate.
The most common reason for requesting a urine or blood test is because the person is suspected of being under the influence of drugs. It’s also common for a blood test to be requested when the suspect was involved in an auto accident and was taken to the hospital.
Should you take a chemical test?
The answer isn’t a simple yes or no – but if that’s what you’re looking for then the general consensus is no, you should not take a breath test. But lets look at why we arrived there.
When a person is arrested for DUI, they are required to submit to a chemical test of the officer’s choosing. If they refuse, then the BMV imposes an Administrative License Suspension (ALS) on the person. That ALS is imposed at the moment of refusal and is documented on BMV form 2255, which is filled out and served by the officer.
So, the first this we have to acknowledge is the fact that there’s going to be a suspension – on a first offense it is a one-year suspension. But what if you take the test? The officer will tell you that if you take it and the test is over the limit it’s only a 90-day suspension. What they don’t tell you (and they’re not required to) is that if you’re convicted of OVI you’re facing a minimum of a 1-year suspension that could be as long as 5-years. Do you think it’s easier for a prosecutor to get a conviction with or without a chemical test over the limit?
Yesterday I was in the courthouse waiting outside the Judge’s chambers when I overheard a police officer talking with some paramedics. They were there on an OVI case and the police officer told them that no matter what happens – I want that breath test result to be admissible. The officer was telling his colleagues that even if field tests are thrown out or other evidence is deemed inadmissible, as long as the breath test is in –he’ll get his conviction. Then he whispered to his companions, always refuse if you’re ever stopped for DUI. I couldn’t have agreed more.
Another issue that came up today was on a gentleman who submitted to a urine test after his arrest, but the results weren’t available yet. This is common – urine and blood tests usually take weeks to have the results come back from the lab. Since the person submitted to the test but isn’t necessarily over the limit – there is no pre-trial suspension. Until you get to court that is.
In this particular case the man was a 1st time offender and was involved in single car accident with no injuries and no significant property damage. Despite the fact that he submitted to the chemical test and there were no results back – the magistrate placed him under a public safety suspension, which is an indefinite suspension and lasts until the court lifts it. Had he taken a breath test and been over the limit – the pre-trial suspension would have lasted only 90-days. But since the government doesn’t know the result – they just went ahead and suspended him indefinitely. He should have heeded the better advice – politely refuse all chemical testing. You can see the order granting the prosecutor’s motion for a pre-trial suspension here. Remember – this person is a 1st offender, did everything the police asked, and there isn’t any evidence that he is over the legal limit since the test results are pending.
There is an exception to this rule
I would agree to submit to a breath or blood test if I’ve not been drinking. While there are anomalies with the machine and they are generally unreliable, I still am OK with a person that hasn’t consumed any alcohol from submitting to the test. Absent having a medical condition that could effect the results (diabetes, gastric bypass, etc.) I would be comfortable taking a blood or breath test if asked to do so. However, having even one drink and then belching just before the test or having just one drink and suffering from GERD can skew the test results and result in a false high test.
What’s the problem with a urine test?
The primary problem is that the urine test results are not an accurate reflection of what substances are active in your bloodstream and therefore active in your brain. For example, if a 160lb person consumes 4oz of 100 proof liquor at 11am they’re going to be impairing within 45 minutes if not much sooner. Assume that person’s liver and kidneys have processed that alcohol completely over the next 6 hours but have not urinated since they took the drinks. If their urine is tested at 5:30pm, they’re going to be well over the legal limit – even though none of the alcohol is effecting them anymore. That’s the problem with urine testing. If that person were stopped for OVI at 5:30 pm and submitted a urine test – they’re going to be charged with driving over the limit. All things being equal, they’ll be convicted of OVI when they haven’t driven while impaired in the slightest. Again – politely refuse.