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Do You Have to Consent to a Breathalyzer | Expert Insight from Greg Klebanoff, Attorney
Breathalyzer | Do You Have to Consent to a Breathalyzer

Jun 27, 2023 | Criminal Defense, Q&A

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Question: I am stopped for suspicion of driving while intoxicated. Do you have to consent to a breathalyzer or breath alcohol test?

Understanding the Issue

Suppose a police officer suspects you of driving while intoxicated. Do you have to consent to a breathalyzer or breath alcohol test? The rules regarding this matter differ from state to state.

Implied Consent in Arkansas

If you possess a driver’s license and are driving on the state’s roads, you are assumed to have granted consent to a breathalyzer test. Therefore, refusing the test may lead to an additional charge called “Violation of Implied Consent.”

Factors to Consider

  • Sobriety: If you firmly believe you are sober, it is advisable to take the test to avoid being charged with “Violation of Implied Consent.”
  • Sufficient Evidence: If the police have enough evidence to charge you with DWI without relying on the breath test, refusing it does not make sense as you could still face charges of DWI and Violation of Implied Consent.
  • Challenging the DWI Charge: If you suspect that your blood alcohol content exceeds the legal limit but appear sober and pass the field sobriety tests, you can successfully dispute the DWI charge by refusing the breathalyzer test. However, you will still be subject to the less severe Violation of Implied Consent charge.

Legal Considerations

  • Impairment Standard: The police don’t need to prove that your breath alcohol content exceeded the legal limit to convict you of DWI. They only need to demonstrate that you were impaired by alcohol or any other drug to a degree that made it unsafe for you to drive.
  • Prescription Medication: Possessing a valid prescription for medication does not exempt you from a DWI conviction if you were impaired by the drug while operating a vehicle.

Consulting with a Lawyer

In closing, it is always advisable to seek the guidance of a lawyer before making any decisions when you are detained under suspicion of DWI. A lawyer can provide personalized advice based on the specific circumstances of your case.

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