Evidence Gathering And Refusals With DWI Charges

   One of the most common scenarios I see with DWI cases and refusals is where a potential client calls me, and we begin to discuss the facts of their case, then they proudly let me know that they refused to blow. When I hear that they've refused to blow, my wheels begin to turn on what challenges may be available to defend the case. Then I hear them respond to my initial questions with, "Yes, I did say I had a few to drink, I did submit to the portable breath test on the street, I did do the physical sobriety tests, but I wanted to cooperate, you know?" My response: uuuuugh!

    Just because you refused to blow, doesn't mean you've now created a downhill battle in beating your DWI case. It is not that black and white, as many clients unfortunately  believe. If police request breath samples and sobriety tests, they are looking to arrest you,  and they are simply gathering evidence for good probable cause to do so!

   Anytime you get pulled over, and law enforcement begins to suspect impaired faculties, evidence gathering through observations begins immediately. Is the odor of alcohol coming directly from you, and is it strong? Are you fumbling for licenses, or documents? Are your eyes bloodshot (I know, but this one is so common)? Are you slurring your speech? When asked to get out of the car,  do you grab the door for support, or are you unsteady in any way? Also, any weird driving actions will usually be noted, such as swerving or running a stop light. These are a few of the common facts that begin to build evidence against you, and are used to prosecute your case. 

   The biggest mistake  I see in refusals is the mistake of submitting to all the field sobriety testing on the side of the road. Also trying to smooth talk your way out, and making damning statements is a problem. You should not respond to police questioning ever, unless you are represented by counsel. Giving portable breath samples, walking lines, following objects with your eyes, these are all tests designed to gather evidence against you, and courts give these tests significant weight in determining whether or not you are appreciably impaired.

   I think the primary reason people give in to road side testing is for the same reason that people allow unwarranted searches of their homes, cars, and persons. They feel that they appear more guilty if they don't cooperate, they are frightened by law enforcement, and they ultimately believe the cooperation is going to help their situation. Statements from law enforcement are enticing, such as "if you go ahead and give me a breath sample, and do these field sobriety tests, as long as everything checks out you can be on your way tonight!"  These type statements often come off as friendly and seem non threatening. Make no mistake, this is the attempt to begin building a case to arrest you, and you should politely decline. 

   The point of all this is, if you decline to blow downtown on the official breathalyzer, you risk losing your license for a year regardless of the DWI case outcome, but if you've declined all evidence gathering attempts up until that point, refusing to blow might make good sense. That doesn't mean law enforcement won't get a warrant for your blood, but maybe they won't have probable cause at that point. Invariably, I see the scenario where all the testing is cooperated with, then the official breathalyzer at the station is refused. This is obviously not ideal, and often times doesn't greatly improve chances of beating the case. 

   So the main points to remember are, refuse all testing from the beginning, no matter how tempted your are by police or your conscience. Make them prove their case, which is their constitutional burden, as opposed to handing it to them on a silver platter!  If you are charged with impaired driving, call an Asheville DWI Lawyer and discuss your case today!


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