September 25, 2019 | DUI Defense
If you’re pulled over for suspicion of drunk driving in Kentucky, the officer is sure to ask you to take a breathalyzer or field sobriety test.
Just like every other state, Kentucky has its own laws about the rights of people pulled over by police. Kentucky’s implied consent law means that by simply getting behind the wheel, you’ve given your consent to take a breathalyzer test.
Actually, it’s up to the officer whether or not to give you a breathalyzer, blood or urine test.
Can You Refuse to a Breathalyzer Test in Kentucky?
NOTE: The term “breathalyzer” in this article refers to the larger Intoxilyzer machine located at the police station or detention center/jail, and not the smaller hand-held portable breath tester (“PBT”) that you may or may not be asked to blow into roadside.
Yes, you can refuse to take a breathalyzer – but there are consequences. Remember, Kentucky has pretty harsh penalties for DUI.
If you refuse, you can count on your driver’s license being suspended at your first appearance, or arraignment. How long the suspension lasts will depend on whether you’ve been previously convicted of driving under the influence (DUI) in the past ten (10) years (in Kentucky or any other state).
- First offense: up to a 6-month suspension
- Second offense: up to an 18-month suspension
- Third offense: up to a 36-month suspension
- Fourth offense (class D felony): up to a 60-month suspension
Even worse, if you are eventually convicted of the DUI charges, your other penalties (jail time, fines, required counseling, etc.) all increase with each subsequent offense.
One way to keep driving, legally, and reduce any overall suspension period that may be imposed, whether it be pretrial for refusal or post-conviction after a finding of guilt, is to have your attorney petition the court for an ignition interlock device (IID).
This is something that needs to be done at arraignment, which is yet another reason to hire an attorney right away. You may challenge the refusal accusation at a hearing, which takes place within 30 days of requesting it, but must waive your right to this hearing in order to be eligible for IID.
This is an important decision that must be made before you go to court for the very first time. Beside discussing the pros and cons of the device versus the hearing, you’ll need to have certain paperwork in order and ready to file either way you go.
Why Shouldn’t I Take a Breathalyzer Test?
The main reason is that breathalyzer machines are notoriously prone to errors. As a result, there’s no reason to give an officer faulty evidence that could harm your record. Although field sobriety tests are often unreliable because they rely upon the judgment or opinion of the officer giving the test, breath tests are equally unreliable, but for different reasons.
Here’s how it works.
During a breathalyzer, the goal is to measure the percentage of alcohol you exhale. Typically, the amount of alcohol in the blood is 2,100 times the amount found on the breath. So, the breathalyzer’s number is multiplied by 2,100 to determine your blood alcohol content (BAC).
The problem is that everyone is different, and our bodies will react differently to just about any variable. For example, the true ratio between blood and breath may vary from 1,300:1 to 3,100:1. That is a big difference.
Various factors – body temperature, respiration rate, hormone levels, etc. – can all impact a breathalyzer’s results.
There are also problems with urine tests. They’re highly inaccurate because they provide only an estimation of your level of intoxication. This is because urine remains in the bladder until emptied, so the results will be affected by how recently the subject urinated.
Should You Take A Field Sobriety Test?
No, you should not. There are consequences to refusing a field sobriety test, but they aren’t as harsh as refusing a breathalyzer.
Unlike refusing a breathalyzer, not taking a field sobriety test will not lead to the immediate suspension of your driver’s license. You will, however, most likely be arrested for DUI. But being arrested is far from being convicted.
The main reason to not take a field sobriety test is there is absolutely no reason to give police evidence to use against you.
Also, field sobriety tests are often inaccurate. This is mainly because of the specific individual. For example:
- Older people may be more prone to losing balance, find it harder to see, and hear/follow instructions;
- Anyone taking medication – prescribed or over the counter – may have trouble with field sobriety tests;
- Inner ear balance issues and severe back pain can greatly impact your ability to successfully complete a test; and
- Overweight people often have trouble balancing.
Because of their inaccuracies, there is no good reason to submit to a field sobriety test.
What Should I Do If I’m Pulled Over For DUI in Kentucky?
Keep in mind that if you’re asked to take a breathalyzer, the officer must first observe you for 20 minutes before giving the test.
Use those 20 minutes to call a DUI attorney to hear about your options. You can also do yourself a host of favors by the way you conduct yourself while with the officer.
- Be polite. Arguing with the officer is not going to do you any good. Instead, be cooperative and polite without offering any information – even if you feel you’ve done nothing wrong.
- Say as little as possible. Although you may feel obligated to answer questions, doing so can backfire on you in a big way because everything you say can and will be used against you in court.
- Be proactive. Your new best friend is a lawyer. Other than providing cops with your name and identifying information, all other questions should be answered with “I’ll let my attorney talk with you about that.”
Staying calm and being on your best behavior – and remaining quiet – will definitely count in your favor.
The Key Takeaway
While the officer will do their best to convince you to take a breathalyzer or field sobriety test, your best interest is served by refusing. Even though the officer will stress the implied consent law, it’s best to rely upon the expertise of a DUI attorney.
To learn more, call our Louisville criminal defense law firm at (502) 371-7000 or visit our contact us page to send us an email.