One of the most common areas of confusion and misinformation is in the area of DUI tests. One of the reasons is that there are several different categories of tests and each have a different level of consequences, if any, if you refuse to take them. One thing in common that they all have is that they assist the police in building a case against you. You are participating in your own prosecution when you agree to these tests. However, as you will see, some tests are wise to refuse while some are going to happen whether you agree to them or not. Normally the first “test” you’re “asked” to take is what is called the HGN test.
The HGN or Horizontal Gaze Nystagmus
This test is usually the first official test the officer or deputy will perform on you on a DUI stop. It basically involves the officer testing the tracking of your eye balls using a pen or pen light. It is meant to detect neurological dysfunction one cause of which is alcohol consumption. It is usually wise to refuse to take this test and ask to speak to a lawyer. One caveat is that the prosecution can point out to the jury that you did refuse this tests. Still a refusal it is better than failing it. In addition there other causes of failing this test beyond alcohol consumption. Therefore it is very possible to get a false positive and fail this tests even though you are no impaired by alcohol or even impaired at all.
PBT or Preliminary Breathy Test
This is the small hand held device you commonly see officers on the side of the road using. Good idea to refuse in most cases even though the result is not admissible as evidence in court. A positive BAC reading tells the officer that there is a presence of alcohol in your system and gives an approximate BAC. This BAC reading by the PBT hand held machine may be wildly inaccurate or it may turn out pretty close to the much more accurate blood or Breathalyzer tests.
The Field Sobriety Test Battery
These are the tests you are probably most familiar with when you see people being investigated for DUI on the side of the road. The so called “Walk and Turn” and “One legged Stand” are commonly administered in Arizona. These tests should be refused and you should ask to speak to a lawyer. Again these are nearly impossible to “pass” even if you have zero alcohol in your blood stream. They are a fool’s errand and will often be very helpful to the prosecutor. Refusing to take them can also be pointed out to the jury but in most cases I would much rather defend a case with no test being performed. It hinders the prosecutors ability to meet their burden of proof.
The Chemical Test
This is the exception to the general rule of refusing to take tests. Once placed under arrest, you should consent to the blood/urine/ or Breathalyzer test. You can refuse but your license will be suspended for one year, instead of the 90 days you would normally get for a first time alcohol dui. In addition if you refuse, a telephonic search warrant will be obtained within minutes and they will draw your blood anyway. Also they can point out the refusal to the jury. This is the only test that in nearly all cases your consent should be given if you care about not having your license suspended for one year. Some people do not care about that and will refuse anyway and that is their decision.