The quick and easy answer is NO! However, understanding the law is seldom quick and easy. Here are some factors to consider before you POLITELY and RESPECTFULLY refuse the roadside breath test.
The Constitution does not die just because you are driving your car and perhaps have had an adult beverage.
Before an officer can initiate a traffic stop that officer must have reasonable suspicion that some type of illegal activity is taking place. Big surprise, there’s not a real good definition of reasonable suspicion. Basically, if the officer has a “justifiable belief” you’re doing something you shouldn’t be doing he can stop you and check it out. This justifiable belief must be supported by specific acts. (speeding, weaving, etc.) It’s a quick stop at this point. This does not allow him to do a full-blown investigation, testing, etc.
The officer must have probable cause to place you under arrest. That probable cause can come in the form of failed field sobriety tests and/or a blood alcohol content BAC over .08%.
So if you don’t take the roadside breath test they can’t arrest you right??
WRONG. Understand you will very likely be arrested for refusing to take the roadside tests. WHY?
When you got your driver’s license you agreed to comply with the reasonable requests of law enforcement. Accordingly, your refusal could result in loss of your driving privileges for up to 180 days. Longer if you have prior convictions for DWI.
A refusal will be seen as probable cause of your driving while intoxicated (otherwise you would have submitted to the tests).
BLOOD SEARCH WARRANT
Once arrested the officer will probably obtain a search warrant from a judge to allow your blood to be drawn and analyzed to determine BAC. The best practice is to comply with the search warrant. You will also be subject to a breath test on a much larger and supposedly more accurate machine. An experienced DWI attorney can review the procedure and paperwork regarding the blood draw and breath test machine to determine if it was all done according to the law and look for ways to have the test results thrown out.
STANDARD OF PROOF
To be convicted of DWI a jury or judge must believe beyond a reasonable doubt (a very high standard) that your BAC was over .08% OR you were not in control of your mental and physical faculties. SO….. if there is no roadside breath test and no field sobriety tests performed (because you POLITELY and RESPECTFULLY refused them) the State will have a much harder time convincing a jury or judge of your guilt.
If you have been arrested for DWI, you should speak with an experienced DWI attorney near you.