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Breath Tests and Chemical Tests (DUI)

Drunk driving (DUI) is a serious offense.  It comes with many serious consequences both in the form of penalties, but also in what can happen while driving under the influence of drugs or alcohol.  From car accidents, to hitting pedestrians, driving drunk carries some serious repercussions. All U.S. states have driver licensing laws which state that a licensed driver has given their implied consent to a field sobriety test and/or a Breathalyzer or similar manner of determining blood alcohol concentration.

Recently, the Supreme Court of the United States, took up the issue of breath tests and chemical tests.  It is important to know your rights and understand them under the new ruling.  The Fourth Amendment permits warrant-less breath tests incident to arrests for drunk driving (DUI)but not warrant-less blood tests.  (BIRCHFIELD v. NORTH DAKOTA CERTIORARI TO THE SUPREME COURT OF NORTH DAKOTA No. 14–1468. Argued April 20, 2016—Decided June 23, 2016*)

Implied Consent

In most cases, if an officer suspects that you are driving under the influence, “implied consent laws” require you to take a chemical test (using your blood, breath, or urine) to determine your blood alcohol content (BAC). Implied consent laws say that by just driving on the road, you are agreeing to take a chemical test to assess your BAC. Implied consent laws vary by state – particularly about which test is required and when it should be given– but every state has them, so in every state you must take the test.

See the chart below for the consequences of refusal in Utah:

  1st Offense 2nd Offense 3rd Offense
Utah 18 month license suspension 3 year license suspension 3 year license suspension

Breath Test

A breath test is a test in which the accused breaths into a device at the time he or she is pulled over.  The test requires the driver to blow into a breathalyzer to check the amount of alcohol that has been drunk.  These tests are used by law enforcement and prosecutors to demonstrate whether or not the accused is intoxicated to a point they should not be able to drive a vehicle.  In Utah, the limit is .08%.  This does not mean that only those above this limit will be charged.

Chemical Test

A chemical test is a test in which the accused submits to a blood or urine sample instead of a breath test.  The test requires the accused to provide a blood or urine sample to the police.  Utah Code Ann. §41-6a-523 reads in relevant part:

Persons authorized to withdraw blood – Immunity from liability. (1) (a) Only a physician, registered nurse, practical nurse, or person authorized under Section 26-1-30, acting at the request of a peace officer, may withdraw blood to determine the alcoholic or drug content. (b) The limitation in Subsection (1)(a) does not apply to taking a urine, breath, or oral fluid specimen.

Birchfield v. North Dakota

In this case, there were three defendants whose cases were consolidated into one.  The Supreme Court has held that a breathalyzer test may be conducted without a warrant.  However, a chemical test without a warrant is in violation of the Fourth Amendment.  The case focuses on two areas, the breath test and the blood test. They did not address the requirements for a urine test and if taking a urine test would be in violation of the Fourth Amendment.  The Court found that because a blood draws includes the “piercing of the skin” and can be preserved, thus causing anxiety for the accused, a warrant is required in these cases in order to protect the accused’s Fourth Amendment rights.  Breath tests were found to be less intrusive and therefore do not get the same protection.  Breath tests only yield BAC levels and leave no biological sample behind for the police to use.

Preserve your rights

If you are arrested or charged with DUI in Utah, you need experience on your side.  While this blog post is designed to help you understand your rights, it is important to know that your rights are far more extensive than you may realize in these cases.  DUI carries serious consequences and requires a serious attorney on your behalf.  Refusal to submit to a breathalyzer still carries some serious consequence as well.  It is always best not to drink and drive, but if you find yourself in this situation, speak with a professional as soon as possible.


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