If I’m pulled over for DUI in Orange County should I submit to the roadside breathalyzer test? The short answer is no, there is virtually never a good reason to submit to a voluntary breathalyzer at the side of the road. Think if it this way, each drink you consume will increase your blood alcohol content by approximately .025 and it takes about one hour for your body to metabolize approximately .025 worth of alcohol. So, if you consume only one average drink per hour for four hours, your blood alcohol should get no higher than approximately .025- which is well below the California legal limit of .08. The Drink Wheel found here explains this concept in more detail.
Of course, if you have consumed no more than four drinks over the course of four hours, you might pass the breathalyzer, but you might not. So why take it?
Giving a voluntary roadside breath sample (which is different than the in-station sample they may ask for later) only lets the police lock you into a pattern or profile and gives them more ways to build reasonable suspicion to arrest you for DUI. There is no penalty for not voluntarily giving a sample. After you are arrested, police are going to ask you to give a breath or blood sample at the police station anyway- but police can only ask for these in-station tests if they have reasonable suspicion that you were DUI.
One way defense attorney’s challenge the in-station breath results to claim that there wasn’t reasonable suspicion that the driver was DUI and that the breath results should be suppressed because the police didn’t have grounds to ask for the test in the first place. If you voluntarily submitted to the roadside tests and your BAC was over a .08, it would be pretty hard to make this argument since the voluntary test tells everyone that you were over the legal limit.
Remember though, the voluntary roadside breathalyzer is different than the in-station test. If you refuse to submit to the in-station breathalyzer, the Department of Motor Vehicles penalizes you by automatically suspending your license for one year. And if you fail the breathalyzer, the Department suspends your license for 180 days. But, if you “pass” the breathalyzer with a .07 or lower, the Department will not suspend your license.
In short, never submit to a breath test at the side of the road.
Questions about this post can be directed to Orange County DUI Attorney William Weinberg at 714.834.1400.