A recent Fox News segment discussing the accuracy, reliability and scientific validity of Minnesota’s breath test machines used in the prosecution of DUI cases fell along predictable lines. Criminal defense attorneys criticize the accuracy of these devices and prosecutors continue to express confidence in them. Both sides of the argument miss the point of the better view taken in “A Toast to Silence“, where these devices are discussed at length. The point made in the book is completely omitted in the Minnesota discussion; these tests can be avoided, thus depriving the prosecuting authority of extremely damaging evidence against anyone who foolishly agrees to take them, rendering moot arguments over their accuracy. You don’t have to defend against the result of a test you never took.
In most cases the preliminary breath screening done on the street before arrest is a test on a device so unreliable that you have the option, as in Virginia, to refuse to take it. When you so choose, the police then use all manner of seductive lies spelled out in the book to get you to change your mind and take this test. Most such lies prey on your fear of arrest and unawareness of your right to silence in these pre-arrest, pre-Miranda moments.
If you don’t take this test, nor the optional field sobriety tests and don’t engage in any discussion of what you had to drink and you get arrested, that arrest will not be based on evidence you did not give. The only source of that evidence is you.
Such an arrest is illegal and following that illegal arrest you are transported to another breath test machine at the police station. This is a much more reliable and accurate measurer of blood alcohol content — B.A.C. But, if your arrest is illegal and you refuse the station house test, which I advise, the only consequence is an additional charge of “refusal” and/or a search warrant to get a blood sample from you. That refusal charge should also fail as it resulted from an illegal arrest. Because every bit of evidence collected from you following an illegal arrest, is not admissible against you where it matters, in Court, no matter how correctly the tests are done following your illegal arrest.
If your lawyer can show an illegal arrest — and he can if you give no evidence on the street — you win. No talking and no testing on the street means no evidence to justify your arrest. The word to remember is evidence. Don’t give it to the police; you don’t have to. Remain silent as the 5th Amendment says you may and don’t take any tests.