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Bouldin Law Firm
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To Blow or Not To Blow?

That is the question. . . most often asked to a criminal defense and DUI attorney. Once an individual has been arrested for suspected DUI, DWI or OVI, they are almost always read their rights, implied consent warning and asked to submit to a sample of breath (breathalyzer) or blood test.  While some attorneys advise to always refuse a breathalyzer, I do not agree that the answer is that simple. One problem is that if you refuse to take the breathalyzer in Kentucky, the Court will suspend your license for 120 days.  This can continue regardless of whether you are convicted or acquitted of the underlying DUI. This is an administrative suspension based solely on the refusal of the breathalyzer or other alcohol test. Another consideration is that the refusal can be used against you in a trial as indicia of impairment. If a driver has actually consumed only a small amount of alcohol, the breathalyzer may actually benefit him/her in proving that the alcohol concentration was under the legal limit.  An individual with an alcohol concentration of less than .05 is presumed to not be under the influence. There are complex formulas to determine what a blood alcohol level may be and they are based on the person's sex, weight, amount of alcohol consumed and length of time during consumption. The following link is interesting and fairly accurate in predicting what a blood alcohol level may be. Additionally, the food that the person has ingested will affect the blood alcohol level. The defendant should also be aware that if you blow over a .15, then the case is considered aggravated, which mandates jail time even for a first offense. A refusal is considered an aggravator for second or subsequent offenses, but not for first offense DUI. Therefore, if a driver has consumed large amounts of alcohol and does not have a prior DUI conviction, it is suggested to refuse the breathalyzer. The police in Kentucky may request either a breath test, blood test or urine test. The breathalyzer is requested most often because of its ease of use, time required to take the test and number of people necessary to have the results entered as evidence in a trial. The police will generally only request a blood test if the driver is suspected of using other drugs or a combination of drugs and alcohol. Defendants should be aware that they have the right to a second test of their choosing once they submit to the test requested by the police officer.  I often suggest that if you blow over the limit on a breathalyzer to request a blood test be taken. This is at your expense and is generally done at a local hospital. If you have been arrested and charged with DUI, you should contact an attorney before next appearing in court. Whether you have submitted to a breathalyzer or refused to consent to a breathalyzer, an attorney can assist you through the legal process. In certain cases, a defendant can be acquitted regardless of the breathalyzer result or the refusal. If you have questions or concerns, contact Michael Bouldin for a consultation at 859-581-6453 (581-MIKE) or email at [email protected] .  

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