Interviewer: After that, if they do that test, what happens? Do they get arrested from there and then they take additional tests after that?
Court Koehler: Yeah, if you broke it down into five steps, most commonly the first step is the officer develops a suspicion – either he sees you driving strangely or he smells alcohol or something like that. Then he decides to do the field sobriety test. There’s the first field sobriety test (the Horizontal Gaze Nystagmus) and then they’ll do the Walk-and-Turn and then they’ll do the One-Leg Stand test. So there’s the three, and then the fourth test is the Portable Breath test. If you make it that far and fail all those tests, then that’s pretty much enough for them to arrest you.
So they’ll formally arrest you at that point. They might put you in handcuffs or they’ll put you in the back of the car. They’ll read you their admonition and all that stuff that they have to do. Sometimes they have a breathalyzer in the back of their trunk, or there’s a patrolling van that has one in it or if they don’t have one of those, they will drive you to the nearest station and they’ll take a breathalyzer at the station.
The breathalyzer test is only taken after you’ve been arrested. So at that time you sit down and blow into the real breathalyzer, which is kind of an old typewriter looking thing with the tube, and somebody is there and you have to count and all that stuff. You have to blow for a certain amount of time and whatnot. That is only given after you’ve been arrested, so once you’re taking that you’re already arrested for DUI. They’re using that as actual evidence of your actual blood alcohol level.
Interviewer: Once you’ve been detained can you refuse that main breathalyzer?
Court Koehler: You can refuse it, but there are consequences. If you refuse to take that breathalyzer test, after you’ve been arrested, then you have an 18-month suspension on your driver’s license, which is crazy. Most people can’t imagine not having their driver’s license for 18 months. That suspension is going to stick there no matter what. It doesn’t have anything to do with your court case or whether you’re actually drunk or not. If you refuse that, then the driver’s license division has the right to suspend your license for 18 months, and they’ll do it every time.
That’s why they’re also required to read warnings before they do that. So they’ll say, “Do you want to take a breathalyzer test?” If you say, “No,” then they have to go through a very specific admonition saying, “If you refuse to take the breathalyzer test, your license will be suspended for 18 months” and stuff like that, so what happens then is a lot of times if you have an attorney, the attorney can attempt to attack whether the admonitions were given the right way, whether there was an actual refusal to take the test, those sorts of things. But if you’re not successful in that sort of refusal hearing, then you’re going to lose your license for 18 months.
Interviewer: What’s going to happen on your record if you have a refusal? Can that be expunged from my record?
Court Koehler: Unfortunately, no. What can be expunged are criminal records. The problem with DUIs is the driver’s license division is going to get records, too. It’s required by statute that the courts report these things to the driver’s license division and the police report them, too. The driver’s license division then has a record of your arrest for DUI and your refusal to take the chemical test, and that can’t be expunged. There’s no way to expunge it. It’s going to be there. I don’t know if it goes away after a period of years but it’s at least going to be there for a long time on your driving record, just like if you got a speeding ticket or something like that.
There’s not a class you can take to get it off there. There’s not a motion you can file, or anything like that. It’s going to be on your record as an arrest.