Ask a Backwoods Southern Lawyer
To Blow or Not to Blow
By Franklin Edenfield
Recently The Tybee Beachcomber decided that it would try “Ask a Backwoods Southern Lawyer” as a regular column. Requests for questions were
sent to the Beachcomber community. I always knew that to live on Tybee full-time, your brain had to function at a somewhat different frequency, but
even I was surprised by the responses.
The first question submitted was “How long after your spouse goes missing should you report it?” The second was “How can I legally trick someone
into marrying me?” Not wishing to spend the next twenty years with a tattooed toothless ex-biker named Bubba as a cellmate, I will pretend I never
saw those. For self-incrimination purposes, I do hope they were submitted anonymously.
The third has a much more interesting title but, unfortunately, I understood the context in which it was asked. It was “To blow or not to blow” after
one is stopped for a suspected DUI. There are, of course, enumerable sexually charged responses to that question and one could certainly wonder
if the right response could result in leniency from the arresting officer, but I will treat it as a serious inquiry.
If an officer stops you because he or she believes you may be driving under the influence, then at some point in the process, you will be asked to
submit to a DUI test of the officer’s choosing. Basically we are talking about a breath test or a blood test. Almost every time the officer will elect
a breathalyzer, since it can be administered at the point of the stop, and then again at the station to verify the results. After submitting to the test
requested by the officer, you do have a right to request an additional test, such as a blood test, but at your own expense. Since a blood test would
require that you be transported to the nearest emergency room/certified lab, that request will not endear you to the officer. Chances are you have
just increased the length of his shift by at least an hour.
Not too many years ago, DUI attorneys always advised their clients to request a blood test, since they were considered more accurate and many
were of the mistaken belief that the delay would result in a lower blood-alcohol level. That may be true, but police have access to establish formulas
that would extrapolate back to show your blood-alcohol level at the actual time of arrest. Many now believe that a request for an additional test will
do little more than make the officer mad.
The point to keep in mind is that refusing the test requested by the officer (assuming all appropriate warnings were first given) carries a pretty stiff
penalty.
First the officer will file a statutory affidavit that you refused the test and your license will automatically be suspended for a year or until such time
as the underlying charge is resolved. Your refusal can also result in a presumption that the test results would show you were under the influence.
If you are stopped for suspicion of DUI, there is simply no good reason to refuse the officer’s request for a test. Take the test; be cordial to the
officer; never argue with the person who has the right to either send you home or take you to jail; and hope that maybe you can work something
out in court. You may rest assured that nothing is going to happen on the side of the road that will aid you in any way. There is nothing positive to
be gained by refusing the test.
If you have a legal question you would like to ask, please email me at info@tybeebeachcomber.
18 TYBEE BEACHCOMBER | MAR 2019
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