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Coercion in the Intoxilyzer Room

Let's talk about a DWI breath test. The dreaded breath test. Everyone thinks of a breath test as being the end-all be-all in a DWI case. And in a way, it can be. It definitely gives the police, the prosecutors, the judge, and the jury and pretty-good indication of your blood alcohol concentration. Something a jury can hang their hat on rather than a step off the line or slur that may or may not just be a speech impediment.

The thing about a breath test is that it MUST be voluntary. But, because of the implied consent law, if you don't volunteer to give a breath sample, you can still be faced with repercussions. The statute reads that if an individual refuses to give a breath sample 1) "that refusal may be admissible in a subsequent prosecution" and 2) "your license, permit or privilege to operate a motor vehicle will be suspended or denied for not less than 180 days, whether or not you are subsequently prosecuted for this offense." To put that in layman's terms, if an individual refuses a breath test, his/her refusal can be used against him in court, and whether or not the DA's office files charges for a DWI, the individual can still lose their driving privileges for 180 days.

The refusal and other warnings can all be found here in this DIC 24.

The statute is written and read to DWI suspects in order to inform them of the effects of refusing a breath test and to protect them from making uninformed decisions. It is because of this protection that police are only allowed to read from the statute. The courts have held that if an officer gives a DWI suspect extra-statutory information about refusing – penalties not listed in the statute – even though factually correct, it undermines the protection given by the statute.

By undermining the statute protection, the courts consider these extra-statutory warnings a type of psychological coercion on DWI suspects. A voluntary decision to give a breath sample must be free of physical and psychological coercion. Thus, if a DWI suspect is coerced through extra-statutory warnings given by the officer, relies on those warnings, and gives a breath test, that breath test is not allowed to be used as evidence against him.

To give a breath sample or not to give a breath sample is a decision to be made solely on your own with guidance only from the statute. A breath test must be voluntary to be admissible. The statute gives DWI suspects the information needed to deny or consent to a breath test, and the police may not help sway a decision.

It comes down to the officers and the prosecutors just wanting to keep the roads a safe place for everyone; even if that means making sure all of their I's are dotted and their T's are crossed when charging someone with a DWI. I'm here to help you make sure they've done just that.