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Implied Consent and Refusal to Allow a Test for Alcohol in Alaska

With Christmas and New Year just around the corner, the temptation to drink and drive is often at a yearly highpoint. In most parts of Alaska, the alternatives to using your own vehicle are very limited, so it is understandable, if not excusable, why some people risk being caught while driving home after having a drink or two.

Every driver knows that there are consequences for drinking and driving. The worst consequences are injuring or killing yourself or someone else, which is why there are strict rules about drinking and driving. You risk arrest for DUI if you are stopped by a police officer who has probable cause to stop you on suspicion that you have been driving erratically or drinking.

Most drivers know that the main criterion for a DUI conviction is a blood alcohol concentration of 0.08% or more. It is zero for minors, i.e. a DUI charge may result if any trace of blood alcohol is found at all. Even if your blood alcohol level is lower than 0.08%, you may still be charged if there is reason to believe you were ‘intoxicated’, although it is more difficult to prove this without a blood alcohol test.

The main weak point in deciding whether you have drunk too much is the blood alcohol testing method used. It is notoriously prone to inaccuracies and often an experienced criminal defense attorney can get your charge dropped after a careful examination of how the test was carried out.

You could refuse a breath or blood test, but this could lead to a criminal charge against you

Some drivers may think that they shouldn’t take a test of any kind for blood alcohol, but in fact there are only limited circumstances in which this is lawful. When you obtain an Alaska driver license, you do so on condition that you subject yourself to a breath or chemical test for blood alcohol. This is what is called “implied consent.” Failure to consent to a blood alcohol test, even if this is a breathalyzer test by the side of the road, could lead to either a misdemeanor or felony charge against you.

The actual refusal to consent to a test for alcohol is one charge, while the refusal may be used as evidence to charge you with DUI as well, so theoretically you could end up with two charges against you.

The refusal itself could see you having to pay a fine of up to $1,500 for a first offense, three days minimum in jail and a mandatory ignition interlock device fitted to your vehicle. As with other types of criminal convictions, second or third offenses of the same type just mean progressively more serious penalties.

There is a defense against refusing an alcohol test

In certain limited circumstances it can be justified to refuse an alcohol test. However, considering the potential drawbacks of doing so, you do need to be reasonably confident why you would refuse.

One defense that could be used is if the arresting officer did not advise you of the consequences of refusing a test for blood alcohol. The advice must be made clearly and unambiguously. For example, if the officer suggests that you “could” be charged if you refuse a test (rather than “would be charged”), then this could be used in your defense.

The second main defense against a refusal charge is if the arresting officer did not have “probable cause” to arrest you. Probable cause includes observing you breaking a traffic rule, seeing you with a can or bottle of alcohol by your side, or drinking it while driving. The key to DUI is also that you were actually driving your vehicle with too much alcohol in you. For example, say you have been to a bar, realize that you have had too much to drink, but you remember you left your cell phone inside your car. You open your car to retrieve your cell phone to call a cab or someone else to come and pick you up. An observant police officer sees you, puts two and two together and makes three and then arrests you for DUI. Both a refusal to take a blood test and a DUI charge are not justified.

DUI / refusal to take an alcohol test convictions could see you in jail, pay fines and your license suspended

It is not worth trying to defend yourself against an allegation of refusing to take an alcohol test after an arrest. Make sure that you use the services of an experienced criminal defense attorney. In Anchorage, contact the Law Office of Dattan Scott Dattan. He will fight to represent you in court. You can contact the Law Office of Dattan Scott Dattan in Anchorage at 907-276-8008.

Law Office of Dattan Scott Dattan

341 W. Tudor Road, Suite 103
Anchorage, AK 99503
Toll Free: (907) 276-8008 Anchorage Law Office Map

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