Should you take the breathalyzer test?

If you are pulled over by a police officer on suspicion of drinking and driving, you need to be aware of the consequences of the charges and possible conviction. When the officer detains you, he or she will ask you a series of questions to determine your current situation and state of mind. The officer will likely claim he or she can smell alcohol on your breath and will ask you to step out of the vehicle.

The state of Kentucky allows officers to administer two tests - a preliminary test and an implied consent test. One you can refuse without penalty, the other can be used against you in the court of law and we can answer the inital question "Should you take the breathalyzer test?".

What does the law say?

The officer may offer you a breath test right away, called a "preliminary test." This test can be refused if you are not under arrest. Further, refusal of this test will not count against you in a court of law.

The law states an officer cannot offer a test of breath, blood or urine within 20 minutes of detaining you. However, after an arrest, your consent of a test is now considered "implied," and refusal is subject to criminal penalty. The arresting officer can choose which test (blood, breath or urine) to administer within two hours of an arrest.

Driving in Kentucky is a priviledge and not a right.  If you fail to take the test (Usually the Intoxilyzer 5000EN in Kentucky), then your license WILL be suspended.

The driver license suspension periods are as follows:

DUI First Offense: 30-120 Days

DUI Second Offense: 12-18 months

DUI Third Offense: 24-36 months

DUI Fourth Offense: 60 months 

Further, per KRS 189A.105(2)9a)(a)(1), if you refuse to submit to the test, the refusal may be used against you and you will be subject to mandatory minimum jail sentences TWICE as long if you are convicted of the DUI.

Time is an important factor

If you are pulled over for DUI, you will find yourself under the microscope of the law quickly. Time is of the essence for both you and the officer. Before you are administered a blood, urine or breath test, you will have 10 to 15 minutes to contact an attorney about your rights.

To avoid or reduce consequences, know the name of an experienced criminal law attorney to contact before consenting to a test. Navigating the law and court system can feel intimidating, but you are still entitled to due process through fair representation.  As former prosecutors, we have handled hundreds of DUI cases and can help navigate you through the process.

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