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In a prior post, I wrote about your ability to decline (politely) to participate in roadside standard field sobriety tests after being pulled over. I asked you to “stay tuned” for this post and here it is.

If you perform the field sobriety tests and “fail” them, the police officer will likely request you provide a breath sample to test for estimated alcohol content of your blood. This test can be done on the “roadside” with a hand-held machine or at the jail if the officer does not have a roadside machine. The question is: can you refuse to provide a breath sample?

As with most things in the law, the answer is “yes…but…” A breath test requires your cooperation. If you don’t blow or don’t blow properly there will be no valid result. You may think this is a good thing because without a valid result, there is no evidence for the state’s attorney to use against you at trial. Good deal!

Unfortunately, your refusal comes with other consequences. Idaho law specifically addresses your refusal to take the test. The law says that if you refuse to participate in the test (refuse) you will typically lose your driver’s license for 1 year if it is your first refusal! I say “typically” because you do have an opportunity to convince a court your refusal was justified. “Because I didn’t want to give the government evidence to use against me” is not justification to refuse the test. Additionally, the fact you refused to provide an evidentiary sample can be used at your trial to support the government’s contention you were intoxicated.

It doesn’t seem quite fair, does it? This may be the only area of the law where you are penalized for failing to provide evidence against you. Fair or not, Idaho Code § 18-8002 is the law.

There are, of course, potential challenges to the initial traffic stop or the officer’s conduct during the stop which could make refusal appropriate. That is why you need a qualified DUI attorney to help if you find yourself in this situation.