This is just out of curiosity, as I would like to know what to do in the situation. I understand that my state is an implied consent state. If I refuse the Breathalyzer my license is suspended for one year (I can challenge and get a work permit of course), and the state can use my refusal as "evidence" that I am guilty. Now since I am under 21, a BAC of .02 or higher is considered DUI for me.
Lets say I have had one or two beers, should I:
A) Flat out refuse the Breathalyzer + Field Sobriety Test
B) Do the Breathalyzer but decline the FST
C) Do both
D) State that I fully intend to take the Breathalyzer, but I request to speak with my attorney regarding this issue first.
Assuming it is 2AM, will option D work? I have not refused the test and the police can not deny me my attorney. I may go to jail, but that does NOT mean a conviction. By the time I get my attorney, I will have sobered up. If not what is the best option?
On a side note, the implied consent law says that I must submit to urine testing as well. I smoke Marijuana occasionally. Lets say I have smoked a few days ago (and am not under influence at the time). The urine test will obviously show that I have smoked within 30 days. Is it in my best interest to take the Urine test?
Does a Breathalyzer refusal\Urine refusal really better my chances of beating the case?
Here is the state statute:
Thank you for your help!
2 Answers from Attorneys
This is too complex to answer on this free forum. You should submit this as a paid question or I'm sure if you go to an attorney in person, most offer a free consultation.
First of all, since you are in Orange County none of this really matters since the Court has held that the Breathalyzer 8000 results are inadmissible without the proper foundation, which the State has been unable to provide.
However, just to answer your main question anyway- requesting a lawyer prior to taking the breathalyzer is still considered a refusal so your plan will not work.
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