One of the most frequent questions I am asked is my legal advice on whether someone that has been pulled over for a DUI should provide a breath sample or not. This issue is becoming a hot topic in Missoula now, as legislation passed to increase the penalty for refusing a breath test. In fact, one of our local politicians supporting this move, was convicted for a DUI (shockingly she did provide a breath sample). In some other states, you are jailed up to 30 days just for refusing. Montana’s penalty for refusing a breath test is currently only the automatic suspension of your driver’s license for 6 months. In Missoula, the new legislation attempts to place an additional fine and threat of jail for a refusal.
If you do provide a breath sample, that is potential evidence to convict you of a DUI. The breath test instruments deliver a digital number of what your “deep lung air” breath alcohol is. Supposedly, it is a fairly accurate number, but like anything else it has its drawbacks. The bottom line is, when you give a test and a number comes out of it, if it is above .08 in Montana, you will be arrested for DUI.
So, the question: Do I give a breath sample or not? I advise my potential clients and anyone else that asks me, that if you believe you have honestly had more than 1 drink per hour, you should probably decline the breath test, because there is a good chance you are over .08 That level of breath alcohol is exceptionally low and easy to get to. You can debate your metabolism and body weight all day long, in the several hundred DUI cases I have been involved in, the hour a drink per hour rule has always been a good standard.
So, if you have had more than that per hour and your drive away from the bar and get pulled over, I would suggest you exercising your constitutional right to refuse the test. Yes, you have the right to refuse it, so you are only exercising your rights. If, however, it has been quite some time since you last had a drink and you honestly believe that you consumed at or less than 1 drink per hour, you should give a breath test. Your result should be below .08 and you will not lose your license for 6 months.
If this topic interests you, or you are concerned about the pending increase of penalty for you exercising your right to refuse a breath sample, write a comment this blog, or talk to your local representative about it. The politicians work for us and represent us. They need to know what we think if you want to have your opinions heard. Exercise the influence of your vote.
Marty is a former criminal prosecutor in the Cascade County Attorney’s Office and now uses that experience to defend those accused of crimes. A University of Montana School of Law graduate, Marty focuses his practice on personal injury and criminal defense and is a premier DUI defense attorney. He is also well versed in the insurance claims industry and has negotiated significant settlements with nearly every major insurance company.