Q: Do you have to do a breathalyzer test if a cop stops you?
A: No, you can always refuse the PBT. Just know that doing so will result in the suspension of your license. Talk to an attorney about ways to mitigate this with the MVA.
No, you do not have to take the breath test--unless there is a death-involved accident, in which case the police can require a blood sample. Nor do you have to perform any field sobriety tests (walk-and-turn, one leg stand, count backwards, etc.). However, with respect to the breath test, a refusal has immediate consequences to your license to drive, and will result in a suspension that may only be modified by installation of an ignition interlock devise for a period of 270 days for a first offense test refusal, and 2 years for a 2nd or subsequent test refusal. You will only have 30 days to request the interlock, or 10-30 days to request an administrative hearing to challenge the police officer's probable cause to conduct the initial stop, his reasonable basis believe you were driving while under the influence, or to challenge whether you were properly advised of your rights and knowingly refused the test (or was not actually offered the test within the prescribed time frame). If you prevail at the administrative MVA hearing on the breath test refusal, then there will be no suspension and you will not need an ignition interlock. These challenges are very fact-specific, and in the majority of cases, the facts will not justify the challenge. This is why you need to consult with a lawyer sooner than 10 days after the charges in order to decide how to proceed. Taking a breath test has lesser penalties, and depending on the test result, may not involve the ignition interlock. Most first offenders tend to have better results by taking the breath test than refusing because of the MVA penalties, and the fact that most first time DUI charges will not ultimately appear on their record.
The MVA sanctions are not, however, connected to the DUI trial in court, and are separate. By refusing the breath test, as well as politely declining to perform any of the physical roadside field sobriety tests, and NOT admitting to drinking anything (it does not help to say "I only had one") you will deprive the State of useful observational and scientific evidence, and admissions, to prove their case against you at trial. A breath test refusal can be used to argue that you believed that the test result would show alcohol in your system, but it is not conclusive. Finally, there is a difference between the portable breath test you are offered on the roadside before being taken back to the station, and the breath test you are offered at the police station. ONLY the breath test taken at the police station using the intoxilyzer machine is admissible into evidence. The portable test at the scene of the stop, known as a Preliminary Breath Test or PBT for short, is not admissible and cannot be used against you--so you can take that one without consequence; however, there is no reason to do so if you believe it will show an illegal alcohol content. A PBT is only to assist the police officer in deciding whether to proceed with the arrest.
If charged, contact a lawyer immediately because there are actions you need to take within 10 days of the arrest to protect your privilege to drive, as well as to prepare yourself and your case to maximize your chances of the best results at trial.
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