Under normal circumstances, the police need only a few things to charge a person with refusal. Although this remains true there have been certain case law clarifications that may provide a window of opportunity for those currently facing refusal charges. I have made these arguments and won. Not every attorney is aware of them.
Regardless it is important to understand what is necessary for the police to proceed on a refusal charge.
First they need to establish that there was probable cause for the arrest. This means that there was a legitimate reason to stop the motor vehicle. It also means that there were, in the totality of the circumstances, enough indicators that you may have committed the offense of driving while intoxicated. Probable cause is not the same as beyond A reasonable doubt. It’s a much lesser burden. None the less, the police must show that it was reasonable for them to act in the way that they did. The report will contain many different statements about how you looked, smelled, talked, walked, etc.
If the police are able to establish that there was probable cause for the arrest, then they must show that they complied with the statutory requirement which mandate a clear and concise reading of the standard statement. The standard statement admonishes the individual as to what will happen if he does not provide samples of his breath. It is boilerplate language, legal in nature, and not necessarily very easy to understand. People frequently get this confused with Miranda warnings. The difference is you have the right to refuse to speak two police. But you don’t necessarily have the right to refuse a breath test when it is properly requested. If the form is properly read and the defendant gives an answer other than yes, the police are, in most instances, required to read a second warning.
In some instances the individual will give a firm “no” after the first part of the morning. In other instances the answer given will be not so clear. It is in the second situation that the police are required to read the second part of the room reading.
Many lawyers will tell you that it is very difficult to beat a refusal. This is true. But I have had tremendous success arguing both probable cause issues and procedural issues that eventually result in the dismissal of refusal offenses.
More importantly, there have been certain important cases recently decided that may provide a small window of opportunity for those charged with refusal. This window will close shortly but those who are already facing refusal charges may be able to argue that the refusal charge is invalid. If you have been charged with refusal and want to know if you may qualify for this relief, I can be reached 24 hours a day for questions.