Should I Take the Breath Test? The Very Short Answer:

  1. Do not, under any circumstance, submit to the Field Sobriety Tests. Ever. This includes the Finger to Nose, One Leg Stand, Alphabet or Counting tests, the Walk and Turn, or the Horizontal/Vertical Gaze Nystagmus tests. Do not take them.
  2. If you are being ticketed for a traffic violation (such as speeding, failure to maintain lane, etc.) the law requires you to submit to a pre-screen breath test. This is a roadside test and it is different from the Datamaster DMT test that is given at the station.
  3. If you refused to take the Field Sobriety Tests, you should also refuse to take the Datamaster DMT test unless you are certain you are not intoxicated by alcohol.

Should I Take the Breath Test? The Long Answer:

  1. The Field Sobriety Tests are unscientific exams that were designed to be failed. Most sober people cannot pass them, so do not, under any circumstance, submit to the Field Sobriety Tests.
  2. If you are being ticketed for a traffic violation (such as speeding, failure to maintain lane, etc.) the law requires you to submit to a pre-screen breath test, called an Alcosensor Test. Failing to take the pre-screen Alcosensor is a no-point, non-moving violation; it's a traffic ticket. The Alcosensor is a roadside test and it is different from the Datamaster DMT test that is given at the station.
  3. If you have had fewer than than two or three drinks over a five-hour period leading to your arrest, and if you finished your last drink no sooner than 90 minutes before your arrest, take the Datamaster DMT test.
  4. If you have had any more than three alcoholic drinks over a five-hour period, or if your last drink was finished sooner than 90 minutes prior to your arrest, it is very likely that you will test over the legal limit, and you should seriously consider refusing to take the Datamaster DMT test. There is, however, a downside to refusing the the Datamaster DMT test. If you refuse, the DMV will take action to revoke your drivers license for one year. You won't become eligible for a conditional drivers license unless you are convicted of a drinking-related driving offense such as DWI or DWAI. Also, every District Attorney in the region has a policy of not making plea reduction offers in refusal cases; if you refuse you will almost certainly go to trial.

One Time When You Should Absolutely Take the Breath Test:

  1. If you have not had anything to drink, take the breath test. Do not stand on principle here, even if the police are acting completely unreasonable. Refusing to take the breath test when you are sober is like asking to spend $5,000 - $10,000 on court and lawyer fees. You may win, but it just isn't worth it.

Next Steps...

You can reach Mr. Militello seven days a week; he meets new DWI clients on the weekend. If you have a charge and are ready to speak with an experienced attorney, call us at (585) 485-0025.