If you refuse a breathalyzer in Lakewood, the cops are going to stick you with a needle. And they might stick you even if you agree to blow, because who knows? Maybe you also have THC or some other drug in your system.
When you are arrested for DUI, the police typically take you to the station and ask you to blow into a breathalyzer. You can refuse, but if you do, your license will be suspended[1] for at least a year[2] (rather the 90 days you will get if you blow over .08), and they can get a warrant to search your blood anyway.
These days it doesn’t take much to get a warrant. The police just call a judge, even after hours, tell the judge why they arrested you, and the judge authorizes a “qualified” person to take your blood. It’s all done telephonically / electronically; there is very little lag time.
Most attorneys will advise you to blow at the station, but to refuse to answer any questions. This is generally good advice – although not universally applicable. For example, if you know that you are going to blow four times the legal limit you might want to just eat the administrative suspension[3] and hope the police don’t apply for a warrant, because once prosecutors see a number like .30 or higher they are unlikely to amend the charge or cut any deals.
“Go ahead and blow” is particularly good advice if there’s anything else in your system – even prescription medication. A DUI blood draw tests for marijuana, cocaine, opiates, meth, xanex, ambien… you name it. And a “combo” DUI is considered by prosecutors and judges much worse than just an alcohol DUI. If you blow and you’re over the limit the police aren’t likely to test your blood as well – unless they found a baggie on you, or you reek like a Rastafarian on 4/20.
They haven’t been likely to up until now, that is.
One criticism of having police officers who took a class in phlebotomy, rather than medical professionals who do blood draws every day, perform the blood draw procedure is that they don’t get as much practice. Lakewood P.D. says that they will develop policies to ensure that their officers do a certain number of blood draws each year. Such policies would seemingly incentivize officers to conduct blood draws whenever they can get a warrant, not just when a suspect refuses to submit to a breath test.
Often times, police use boilerplate probable cause language in their declarations in support of applications for search warrants. It would not surprise me to see this standard language get expanded to include observations indicative of drug impairment (pupil dilation, shakiness/tremors, etc.) so that the Lakewood police can go fishing in your veins for practice.
Having your blood drawn, whether or not you get a cookie afterwards, is invasive and uncomfortable. Even registered nurses sometimes have to poke you several times before they strike red gold. Imagine an officer you just called a pig or an ####### doing it! At least the room is going to be audio and video recorded.
[1] Your license will NOT be suspended for refusing the portable breathalyzer in the field.
[2] The first time you refuse it’s 1 year. A second refusal within 7 years, or a first refusal within 7 plus a prior suspension within 7, will get you a 2 year revocation. Assuming, of course, you lose your DOL hearing. Barbara Bowden is particularly adept at winning DOL hearings, saving her clients’ licenses. Give her a call today!
[3] Your license will also be suspended – the period of which depends on your alcohol level and DUI history – for a conviction. You will get credit for any administrative suspension.
