Criminal Defense attorney Mark Mandell has been asked just about every question in the book when it comes to drunk driving. What’s the most popular? “Should I take a breathalyzer test?” This question is asked more than any other. While this article and video will not specifically tell you to take the breathalyzer test; instead, we will outline the penalties associated with refusing to test.

Preliminary Breath Test (PBT)

When someone is pulled over under suspicion of operating while intoxicated (OWI), a police officer will administer what’s called a “preliminary breath test” – or PBT. If you refuse to take this test it will result in a civil infraction and a fine, but there are no restrictions on your driving privileges. Ultimately, the roadside breath test is performed to determine if an arrest is warranted, the results of it would also establish probable cause so they can take you to the station for more accurate testing.

DataMaster Breathalyzer Test 

The most important situation to consider is being taken to the police station and asked to test there. You may hear stories of folks that have completely refused the breathalyzer test and were off scot-free, that is false, and I’ll tell you why.

Refusing a breathalyzer test administered at the police station may result in officers obtaining a search warrant from an on-call Judge, and guaranteed within 5-minutes of refusing you will be taken to the hospital to have your blood drawn. As a result, no matter what any attorney can do for you in criminal court, you are facing a 1-year suspension of your driving privileges period. However, you can fight this by seeking what is known as a “hardship appeal.”

What is a Hardship Appeal?

A hardship appeal is a procedure where your attorney can request the Court to order the Secretary of State to issue a restricted driver’s license during the time of suspension. Your attorney must prove to the judge that you will suffer undue hardship with no license and there is no available public transportation. A restricted license allows you to get back on the road and drive for employment, school, and other important reasons.

Below is a list you must complete to receive a hardship appeal:

1. Receive a Substance Abuse Evaluation
2. Your Attorney Must Formally Request the Court for a Hardship Appeal
3. Take the Case to a Circuit Court

When taking your case to the Circuit Court, you will go before a judge to explain your mistake of refusing the breathalyzer test. The Court will review your Substance Abuse Evaluation, and if they believe you have a serious problem with alcohol you will not get your license back.

This is a prime example of why you need an experienced criminal defense attorney guiding you through the difficult process of a hardship appeal, so you can remain licensed during the pendency of your criminal matter and probation.

If you are facing criminal charges, find out how our defense attorneys can help you by calling Fausone & Grysko, PLC today at (248) 380-0000.