Here is a story from the summer that I forgot to post. A politician in Georgia was reported by some tipster to be drinking in a local restaurant. The police went and staked him out. Why? Who knows? It must have been a slow night. Eventually, he left the restaurant and began driving home. The officer saw him “weave” several times. He was pulled over and had the “strong odor of alcohol” coming from his breath. He failed all three field sobriety tests. He was arrested, handcuffed, taken to the jail and breath tested. He blew .000. The police apparently did not trust their Intoxilyzer breath test machine (the same machine used in all Kansas DUI breath tests) since it contradicted all of their subjective findings of intoxication up to that point and so they ordered a test of his blood. That also came back at .000. He got an rare apology from law enforcement for being arrested and humiliated for several days.
What would have happened if the politician had refused to take a breath or blood test because he did not trust the officers who had, obviously, falsely arrested him, or for some other reason? Prosecutors would have maintained the DUI charges against him and argued that the “weaving” and failure of the field sobriety tests were proof that he was too drunk to drive. Fortunately for the victim in this case, the breath test machine was accurate and it exonerated him. However, there are a lot of people who choose not to blow into the breath test machine in this kind of situation because they are angry at being falsely arrested, they don’t trust the police officer who has arrested them despite performing the field tests well, they don’t trust machines, or maybe a friend who is a police officer or lawyer told them not to ever blow. The facts in this Georgia politician’s case sound a whole lot like the facts I hear in a lot of Kansas City area DUI cases where there is not a breath test.
In fact, a few weeks ago a partner of mine had to go to trial on the case of a person in a similar situation who blew .06. That’s right, under the legal limit. The client was found “not guilty”. In the Kansas City area, plenty of prosecutors will still charge a person with a DUI and put them through trial despite their testing well below the legal limit. Believe it or not, a lot of citizens, faced with the costs associated with defending a DUI and the draconian penalties associated with a DUI conviction, will go ahead and plead guilty or take diversion despite not having broken the law! Our law firm handles Kansas DUI cases where people have blown under the legal limit on a regular basis. Those cases can be fought and won. Often these “low-blow” cases involve people accused of “weaving”, or some minor traffic infraction, the “odor of alcohol” and failed “field sobriety tests”, just like the unfortunate politician from Georgia. So, some people will refuse the breath test because they know that even if they blow under the legal limit they are still going to get charged with a DUI.
I guess things worked out OK for the guy from Georgia. He was the County Commissioner and his case was high-profile. I wonder if a regular guy would have been so lucky?