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It’s Not a Candygram
If you ask a shark if it’s a good day to swim, of course he’ll say yes. He is a shark. On the other hand, you can’t blame him too much if he bites your leg.
I read an article in DemGaz last Saturday on “Drivetime Mahatma.” It is called “Saying no to a breath test a loaded issue.” In it, a reader asked if he should blow a portable breathalyzer that got stuck in his face at a DWI roadblock. The Mahatma goes on to inform the readers that they have the “right” to refuse the test, but implies that if they do so they will be charged with a Refusal under Ark. Code Ann. 5-65-205.
Then, in a very un-Gandhi-like move, he deferred to the police for an answer. The Mouthpiece of the Arkansas State Police, Bill Sadler, was quoted as saying that you must “comply with the trooper’s requests.” While you’re at it, you can confess to the trooper every crime you’ve committed.
Basically, that’s the answer to the article. Here’s mine as it relates to portable breathalyzers: DON’T BUG!
The Mahatma is right that you have every right not to blow. That’s true whether you’re talking about the portable breathalyzer (or “PBT”) or the stationary breathalyzer at the station.
The Mahatma is WRONG in his implication that you will be charged with the separate crime of Refusal if you refuse to blow the PBT. We have NEVER had a client charged with Refusal when the client refused to fire a PBT. I can see where one might get confused… the law (Ark. Code Ann. 5-65-202) says that if you drive, then you consent to chemical test(s) (ie breath test) , and it does not provide an exception for a PBT.
However, Ark. Code Ann. 5-65-204(b) and 5-65-206(c) require that a chemical test be performed in accordance with a method approved by the Department of Health (unless it is performed by the State Crime Lab). In addition, Ark. Code Ann. 5-65-206(d)(2) requires that the instrument be certified at least 1 time in the previous 3 months and that the operator of the instrument be trained and certified. A PBT does not meet these requirements. As such, you should not submit a chemical test that has not been approved as a “chemical test.”
Not to mention, a PBT is completely inadmissible in Arkansas as evidence of intoxication anyway. There are many good reasons why a PBT is unacceptable (ie mouth alcohol, calibration, etc.), but I’ll save that for another day.
As for the stationary breathalyzer at the station, which is acceptable, you have the right to refuse the test. BUT, you will be charged with Refusal. But there is no jail time or fine for a Refusal. I know you are saying to yourself, “What kind of ‘right’ is it if I am charged with a crime for exercising my right?!” I don’t have an answer for you on that.
Finally, you don’t need me to tell you that whenever you have a legal question about criminal law and the only authoritative answer comes from a police officer, you can get a second opinion. . And if you can’t get a second opinion on short notice, DO THE OPPOSITE!
Don’t get me wrong, I don’t blame the Mahatma. MANY people are confused in this area of Arkansas DWI law. So, you have a… second opinion. Now you don’t have to listen to the sharks.
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