May 31

Breath Tests in DWI Cases

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If you are pulled over and suspected of drinking while driving, a couple things happen immediately. First, the officer will administer field sobriety tests. These can include the walk and turn, the one-legged stand, saying the alphabet backwards or a part in the middle, the horizontal gaze nystagmus, and the vertical gaze nystagmus.

Next, if the officer decides you failed the field sobriety tests, he or she can give you a breath test, called the preliminary breath test (PBT). This test cannot be used in court against you, so you do not have a right to an attorney. This test is only to help the officer determine whether you are over the legal limit (.08). If you are, the officer can arrest you.

After you have been arrested, either in the squad car or at the police station, the officer will read the Implied Consent Advisory. Basically what this tells you is that by driving in Minnesota, you agree to be tested for alcohol in your system. If you do not submit to the test, you can be charged with a crime. The officer can offer you a blood, breath, or urine test. You also have the right to contact an attorney before the test.

Because this test is used against you in determining whether to charge you with a DWI, what level to charge you with, and in court against you, you have the right to talk to an attorney before you make your decision whether to submit to the test.

In short, the PBT done at the scene cannot be used against you in court and so you do not have the right to contact an attorney prior to taking the test. The breath test or blood test or urine test taken at the police station can be used against you in court and so you do have the right to contact an attorney prior to taking the test.