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Don't Always Refuse Breathalyzer

I believe that far too many criminal defense attorneys give faulty advice to "always refuse" the breathalyzer.  There are certainly times when refusal is better than taking the breath test, however it is good to know that there are consequences to the refusal itself. If you are intoxicated, refusal will be the best way to possibly "win" the DUI case and be found not guilty.  The reason is that once you submit, the number itself can be used by itself to prove you guilty of DUI if over .08.  Also, if you blow over .15 (.17 in Ohio) then it is a high tier test which can enhance penalties.  If you are going to blow over .15, it is generally better to refuse the breathalyzer. That said, if you refuse you will lose your license immediately in Ohio or at the first court appearance in Kentucky.  In Kentucky you will lose your license for 120 days, and there is no hardship privileges available.  In Ohio, you will lose your license fore 180 days, but can get hardship privileges after 30 days.  If you do not refuse, Kentucky will not suspend your license until/unless you are found guilty.  In Ohio, you still may lose your license if you test over .08, however you may get privileges after only 15 days. The other bad cases are those where the arresting officer thinks that the driver is impaired and asks for a test and the driver refuses even though they have had no drugs or alcohol.  This may occur because the driver is tired or for other reasons.  I have represented individuals with disabilities what make them appear impaired but are actually not at all impaired by drugs or alcohol.  In one case, the defendant had a prior traumatic brain injury that affected his balance and his speech.  Fortunately, the fact that he tested .000 on the breathalyzer and blood test showed no drugs/alcohol, his defense was made much easier. Other cases where the driver has only 1-2 drinks, they would often fare much better by taking the breathalyzer.  While the machine is not infallible, it is often working correctly.  If you are an average size adult, 1-2 drinks will very doubtfully put you over the legal limit of .08.  I often refer clients and potential clients to bloodalcoholcalculator .  This is less than perfect, but should give you a good idea of how much alcohol it takes to get to and above the legal level.  Reminder: a generous pour is often 2 shots, not 1. If you have been arrested for DUI, contact a lawyer.  For consultation in Northern Kentucky or Cincinnati, call Michael W. Bouldin at 859-581-6453 or email at [email protected] .

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