Can my son get his DUI dismissed since he didn't take the breath test?

Question

My son was pulled over for a blown headlight and was given a verbal warning to have it fixed, and then 10 minutes later was pulled over again by another officer for the blown headlight.  

The officer smelled alcohol and said that if he had two people to pick him and the car up he was free to go.  Another officer showed up and arrested my son.  

My son refused to do the field sobriety test and the BAC test.  The officer stated to my son that he was arresting him on his observation.  My son is serving in the military and is on leave right now.  Since the first officer that originally pulled him over had allowed my son to call two friends to pick him and the vehicle up and was not going to arrest him, what are the chances of having the charge dismissed?  The only charge on the citation is DUI.  There is no other charge for moving violation or any mention of the headlight.

Michael Palumbo · Answer

With the right lawyer, yes.

Michael J. Breczinski · Answer

He needs to get a good attorney to explain all this to the prosecutor and then they may be able to work something out.

Mark Bruce · Answer

You need a lawyer to present this to a jury. Don't try to do it on your own. Ask for a public defender if you can't afford a private lawyer.

Steven Alpers · Answer

Probably zero. Refusal is admitted in trial as proof that the person refused the tests because he knew he was under the influence.

Terry Nelson · Answer

Get his DUI dismissed since he didn't take the breath test?  NO.  That refusal got him an automatic suspension of his license by DMV, in addition to whatever the court does. My observations for you son:    You can be charged solely on the basis of the officer's observation, just like any criminal or traffic offense.  You also committed 'contempt of cop' by the refusal.  You will be surprised to find how detailed the police report is concerning your observed inebriated and impaired condition.  A little free advice:   When arrested for DUI, whether alcohol or drugs, then upon release from jail or booking the defendant is given documents that include a notice that you have only ten days to file a request with DMV for a hearing on an appeal of the automatic suspension of your license imposed by DMV upon your arrest.  That is separate and runs consecutively with any suspension that may be imposed by the DMV, or the court upon conviction. Contact DMV and do so, timely if you think you have grounds for appeal, then appear at tne scheduled DMV appeal hearing and present any supporting evidence and testimony.  If you don't know how to do these things effectively, then hire an attorney that does.    When charged with any crime, the proper questions are, can any evidence obtained in a test, search or confession be used against you, can you be convicted, and what can you do? If you don't know how to represent yourself effectively against an experienced prosecutor intending to convict, then hire an attorney who does, who will try to get a dismissal, charge reduction, diversion, program, or other decent outcome through plea bargain, or take it to trial if appropriate.

Gregory Casale · Answer

It sounds like your son has a very good case to defeat the DUI.

Michael Clinton · Answer

Failure to take a breath test merely results in the administrative  revocation of your son's license.  Your son will still need to defend  his DUI charges and needs a DUI attorney to do this.

Willie Stephen Graves · Answer

Chances of a dismissal aren't very good, depending on the county, but chances of beating the charge sound pretty hopeful. Get a good lawyer.

Leonard A. Kaanta · Answer

You have to fight this in court.

Jared Altman · Answer

He definitely had a shot at beating this were he to take the case all the way to trial. But that's time consuming and expensive. I don't think the DA will just drop the case. No way.

Larry Dunn · Answer

The fact that two police officers had contact prior to a third officer   arresting your son does not necessarily mean that the State cannot prove the   case beyond a reasonable doubt. The fact that two officers did not make the   arrest may be a factor in determining if the third officer had probable  cause to  make the arrest. While police are not required to make an arrest,  there is a  public policy to arrest people suspected of DUI. The fact that the  first two  officers did not investigate DUI and allowed your son to call for  a ride,  support that there was not sufficient evidence to investigate for  DUI. The fact  that the third officer did not have the benefit of a field  sobriety test or  preliminary breath test to confirm or dispel the officer's  suspicion of DUI  would support that the arresting officer did not have  probable cause to make the  arrest. Your son should seek legal representation from  an attorney experienced  in DUI defense.

Timothy Klisz · Answer

Not good at all. DUI cases are prosecuted very hard and dismissals are very rare. He may have to try the case if he is innocent.

Philip Hache · Answer

The citation and charges will not include the blown headlight as they have the DUI which is a much more serious charge, so they don't worry about the infraction on the charging document.  If your son refused to do a breath or blood test, it is likely that they are also going to charge him with a refusal enhancement to increase the potential penalty.  It can be helpful in defending the case if other officers pulled him over minutes earlier and let him go, but it is very unlikely that the charges will just get dismissed because of that, and as I mentioned earlier, refusing the breath test actually increases the potential penalties.  He needs to have an experienced DUI attorney review and handle this case.

Brian Wanerman · Answer

If your son refused the breath test and was then arrested, they should have given him a blood test at the police station. You can't refuse this test. So, it's likely the authorities have his blood alcohol concentration (BAC) anyway.  Even if, the police somehow forgot to do a blood test, it doesn't mean your son's case will be automatically dismissed. It's a popular myth in California that the authorities can't convict you of DUI without BAC evidence or if your BAC is less than .08%. There are two "drunk driving" charges in California: Vehicle Code 23152(a) (driving under the influence) and Vehicle Code 23152(b) (driving with a BAC of .08% or higher). Without evidence of a BAC of .08% or higher, they can't convict you of the (b) count. But, they can still convict you of the (a) count if they can convince a jury that you were so intoxicated that your judgment was impaired to the point where you could not safely operate a motor vehicle. The fact that your son refused the field sobriety tests helps him. But, the police will likely testify that he smelled of booze, had slurred speech, had watery, bloodshot eyes, stumbled as he got out of the car, fumbled with his wallet when  asked for his driver's license, etc. This is often enough for a conviction. Therefore, your son's case won't automatically get dismissed. But, depending on the facts, a good attorney might be able to convince the court that there is insufficient evidence and move for dismissal. Consult an attorney.

Stephen Freeborn · Answer

Your son made a big mistake.  It is ok to refuse to do the field sobriety test, but the BAC is different.  Your son can refuse the BAC, HOWEVER, if by doing so, the Department of Licensing WILL suspend  his license for a minimum of 1 year, with no right to and occupational license.  After one year suspension, DOL will want proof of alcohol treatment, and will probably want him to have high risk SR 22 insurance.  This is even if your son is found NOT GUILTY or the DUI charge is dismissed.   The fact that your son refused to submit to the BAC can also be used as evidence against him in a trial... that his refusal was because he knew he would not pass.  There may also be sufficient evidence, without the BAC to allow the case to go forward.... observed driving.  Also, a lot of police now have dashboard cameras in their vehicles that record the stop and the driving.  Did these exist in your son's case.  I would say, your son has created a lot of problems for himself.  You may want to retain the services of an attorney. A DUI may also pose problems for him with his CO.

George Derieg · Answer

No. Your son was arrested for a DUI. There is no way around it now. These are good jury trial arguments, but you must find a lawyer soon to represent your son.

Mark R. Thiessen · Answer

You need to hire a DWI trial attorney.  The DA will never dismiss on their own.  Also, just because there is no breath test doesn't mean they can't make loss of mental and physical faculties.

Timothy Byrne · Answer

Good chance but these facts need to be presented to a judge

James Gandy · Answer

Find a local attorney and see if you can fight this charge.  A failure to submit to a BAC test  will have serious implications for the DMV but might assist in the criminal case.

Michael Morgan · Answer

The fact your son refused a breath test is normally construed as his consciousness of guilt which may make a dismissal difficult even if another officer thought he was OK.

Michael Delsignore · Answer

The DUI will not get dismissed as a result of refusing the breathalyzer, but will make the case more difficulty for the Commonwealth to prove at trial.

Jeffrey Pollock · Answer

I could envision your son winning an acquittal for his DUI at trial with a   good lawyer, but he will get an automatic 1 year Driver's License  Suspension for  his refusal.

Joseph Dane · Answer

He has several issues.  First - the DMV can take action against his license unless he sets up a hearing to challenge the suspension. He only has 10 days from the date of arrest to do that.  Next - the court case. The prosecution must prove driving under the influence. If one officer let him go, clearly he wasn't obviously intoxicated. Then, a SECOND officer wasn't going to arrest him. He has a good argument against the DUI. There is a second charge of driving with 0.08% or more. I wasn't clear in your question if he refused all tests or just the one in the field (the handheld breathalyzer).  This is definitely worth consulting an attorney over.

Kevin Ellmann · Answer

Those facts add up to what seems like a weak case for the prosecution.  I would certainly suggest that you consult with an experienced DUI defense attorney to try and get the best possible outcome.

Gary Russell · Answer

He could still be convicted if a jury can be convinced he was under the influence

Ryan Berman · Answer

It sounds like your son has a very good chance to get the charges dismissed. I would consult an attorney immediately.

Jennifer Leigh Gottschalk · Answer

A breathalyzer evaluation and the results from it are a piece of evidence used to support the charge of DUI.  Refusing to submit to the breathalyzer in NJ is a separate offense (you cannot refuse in NJ).  Your son can still be convicted of DUI merely based upon the officer's observations.

Michael Nichols · Answer

That sounds like your son has some good facts for his case.  Contact a qualified DUI lawyer, especially if your son is in the military

Russell Pietryga · Answer

Your son has a great case to defend.  However, the breath test is just one piece of evidence.  Usually, there is the following evidence in most DUI cases: driving patter; initial contact; field sobriety tests; preliminary breath tests; and finally breath test.  So, as you can see, the case can still go forward, but the prosecutor is missing a lot of critical evidence to get a conviction.  Because your son is on leave from the military, it can complicate it even further.  Your son does not need a conviction on his record.  This can effect his military career.  For instance, it could prevent him from getting a security clearance.  Additionally, he is going to have to deal with this while not being present, since he will not be here tell its conclusion.  Lastly, your son needs to request a DMV hearing within 10 days of his arrest.  If he loses his license, that will effect his base privileges.

Eric Rothstein · Answer

Failure to take the breath test does not lead to dismissal. In fact it can be used as evidence against him and will likely result in a license suspension. Your son's lawyer needs to figure out who the first officer was because given his failure to arrest he can probably be made to testify that he didn't think your son was intoxicated.

Steven Fairlie · Answer

They don't have to charge the headlight violation to be able to justify the stop based on it.  Not the answer you wanted, but that is the law in Pennsylvania.  They can also charge him with DUI based on observations even without a breathalyzer, but, depending on the observations, I agree that the fact that another officer let him go gives you a great defense.  You only need to establish a reasonable doubt.  Call a good Pennsylvania DUI lawyer.

Jeff Yeh · Answer

Yes if he has a good DUI specialist to represent him in court. He was smart to have refused everything, because now the state has less evidence, but on paper refusal DUIs have more severe consequences, and if he has no legal help in court there is no chance the prosecutor will dismiss the case.

Jason Savela · Answer

that sounds like a good one to fight, but unlikely that the DMV or DA will just roll over - you need a good attorney  In response to your DUI Questions:  I am a criminal defense attorney that focuses on DUI cases.  If you would like to discuss your case, please contact me.    Some important information- If you have been served with a Notice of Revocation, then you have 7 days to request a hearing.  Please do that immediately by going to your local DMV office, tell them you got a DUI and you want to request a hearing.  They will give you a form.  DO NOT REQUEST THE OFFICER.  We can do that later if we choose to, but most often it means you will lose.  The receipt DMV gives you allows you to drive until the day of the hearing.    Representation begins when client pays attorney an agreed upon retainer and returns a signed fee agreement.

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Can my son get his DUI dismissed since he didn't take the breath test?

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