On Thursday night, rapper DMX was pulled over in South Carolina for erratic driving, giving police suspicion that he was driving under the influence (DUI). Initially, DMX’s reps indicated that he was not charged with DUI, only being contacted for not wearing his seatbelt. Reps said DMX took a breathalyzer and passed. South Carolina State Patrol has confirmed that DMX was in fact arrested for and charged with a DUI.
Had DMX taken a test and passed, meaning his BAC was below the legal limit, then it is possible he could have been arrested on suspicion of DUI, butnot ultimately charged with a DUI. It is also important to know whether DMX took a portable breath test (PBT), which is a breath test taken ona hand held portable device, or took a breath test on a large breathalyzer machine. This distinction is important here in Colorado because PBT results are not admissible as evidence in a trial, meaning the PBT results cannot used against or by the person charged. In Colorado, PBT results are generally inadmissible because the results are not reliable enough. Breath results from a large breathalyzer machine are, however, admissible. This begs the question: should I take the test?
Source: USA Today July 26, 2013
Should I Have Taken the Test?
Colorado has a law called the Express Consent law that requires a person to take a blood or breath test if an officer has probable cause to believe the person is driving under the influence. Under the current law, if a person refuses to take a breath or blood test, that person may lose his/her license for a year. It is important to know that a PBT is not a breath test for purposes of Express Consent law. An officer may ask you if you are willing to voluntarily take a PBT to help him/her decide whether to continue the DUI investigation, but the PBT is not the same as the breath test required under the Express Consent law.
Ultimately, whether you should agree to or refuse a breath or blood test is highly dependent on the circumstances of your situation. The most important factor is whether you think you are actually sober. If you are actually sober, meaning your BAC is below the legal limit and presumptioms, then the test will be exculpatory, meaning it will prove your innocence. Other factors to consider are whether you have prior alcohol related driving convictions and your level of intoxication. Even if your BAC is over the legal limit, if you have no prior DUI’s or DWAI’s, then you will only lose your license for 30 daysbefore you become eligible for early reinstatement with an interlock device, whereas, under current law, if you refuse, even if you have no priors, you lose your license for one year without an opportunity for early reinstatement. On the other hand, if your BAC is greater than 0.20, then there is a mandatory 10 days jail that must be served wven on a first time conviction.
Regardless of your particular situation; regardless of whether you chose to take a test or refused, it is important that the officer did everything in a legally proper manner, ranging from the basis for the stop to the way in which he/she advised you of the Express Consent law to the way in which he/she administered the test. If any one or more of these things was not properly done, it could have an impact on your case, even resulting in dismissal if the error is big enough. Please contact us for a free consultation. 303-758-7700.