As of Sept. 1, people in Louisiana who refuse to take a breath test will have their driver’s license suspended for one year. The penalty is twice as long as the current penalty for breathalyzer refusal.
“Now … it’s worse if you refuse the test,” said DWI attorney Robert Fleming.
Under Louisiana DUI law, a driver who refuses a blood alcohol test on a first DUI offense will have his or her driver’s license suspended for six months and 18 months for a second refusal.
The new law that Gov. Bobby Jindal signed on June 1 doubles the first offense penalty and suspends the offender’s license for two years on a subsequent offense.
Supporters of the new DUI law feel that it will give drivers the incentive to cooperate with police during a DUI stop.
Many supporters say that currently the common thought among many DUI offenders in Louisiana is to refuse the breathalyzer test.
“The problem was that drivers were refusing to take the test” on the advice of DUI attorneys, said Jefferson Parish District Attorney Paul Connick Jr.
According to Donna Tate, executive director of the Louisiana chapter of Mothers Against Drunk Driving, Louisiana has one of the highest refusal rates in the country. In 2005, 39% of drivers pulled over for drinking and driving refused a breathalyzer, when the national average was 22.4%.
According to Louisiana DUI laws, refusing a breathalyzer test can help drunk drivers avoid DUI penalties, so state Rep. Tim Burns, R-Mandeville, is looking to pass stricter DUI laws to combat this problem.
If a person refuses a breathalyzer today, he or she may face a 180 day driver’s license suspension. The new DUI laws Burns is purposing would suspend a driver’s license for one year for refusing a breathalyzer test the first time.
The bill has been passed by Louisiana lawmakers and is waiting Governor Bobby Jindal’s signature. The law would become effective Sept. 1.
“The tide has really shifted in this issue,” Burns told the press. “It wasn’t that long ago that you could have open containers in the cars, and that’s slowly been gotten rid of, and I think as we move to a society and a state that’s more conscious of this issue, it’s just trying to provide for the public safety of it’s citizens.”
The bill has been criticized by some for infringing on people’s civil liberties, but it is receiving support in most communities.
A response was sent by Mothers Against Drunk Driving, MADD, supporting the bill. MADD expressed that eventually, the group would like to see breathalyzer refusal a criminal offense.
As police departments continue to use Intoxilyzer 5000 and Intoxilyzer 8000 to analyze drivers’ blood alcohol level the courts continue to struggle with the admissibility of the results.
The Intoxilyzer machines are made by Kentucky-based CMI, and the company is very protective of their source code, which details how the machines operate.
Many DUI lawyers are arguing that if their clients are to receive a fair trial then they should be allowed to examine the source code to ensure the breathalyzer machines are operating accurately and properly.
The result? In Florida, a judge dismissed more than 100 DUI cases because the source code couldn’t be reviewed. In Arizona, a judge tried but was unable to order CMI to release the code.
For a good summary on the debate, check out Lawrence Taylor’s DUI Blog, which mentions that issues have arisen in Minnesota as well.
Over the past several months, states have begun instituting programs–usually on a small scale, starting in a few counties–to obtain warrants for blood samples in breathalyzer refusal cases.
We previously reported such programs in South Carolina and Delaware. A Texas Court of Appeals upheld the issuance of warrants for blood samples in 2002, but the state hasn’t regularly used the procedure.
That seems to be changing, with several reported cases of blood-draw warrants over the past two months.
Recently, we reported that several South Carolina counties were piloting a program that would eliminate the value of refusing a breathalyzer test by obtaining a warrant for a blood sample in refusal cases.
The program is intended to reduce the effectiveness of strategic breathalyzer refusal to avoid a DUI conviction.
Delaware DUI law provides for such warrants, but for years officers have been unable to make effective use of the process because they lacked resources to get blood drawn.
A new program already underway in some counties and just being introduced in others provides on-call phlebotomists.
Breath test refusals have long created complications for DUI enforcement, and have been advocated as a strategic means of beating a DUI charge in some states.
Two states have recently acted to address that problem in very different ways: Rhode Island, where the refusal rate had climbed to 85%, has enacted increased penalties for breathalyzer refusal.
At the same time, South Carolina is piloting a program to reduce the benefits of breath test refusal by making a request for a warrant for blood testing the next step in a refusal case.
DUI attorneys often argue that their clients who face administrative–or in some cases even criminal penalties–for refusing a breathalyzer test haven’t made a “knowing and voluntary” refusal.
DUI law varies on that standard from state to state, but most courts seem to lean toward finding a refusal if there’s a legitimate question.
So, it’s somewhat surprising that a Pennsylvania court ruled that reading the warnings prescribed by the Pennsylvania Department of Transportation was not sufficient.
The PennDOT warning form has since been modified, so only cases in which defendants received the old format warnings will be directly affected by this ruling.
The question as to whether or not a DUI defendant has refused a breathalyzer or blood test might sound simple, but in fact, “refusal” has very different meanings depending upon state law.
For instance, a Missouri appellate court ruled in February that a man who had explicitly stated that he was not refusing the breathalyzer test but would not take it until he was allowed to use the restroom had refused the test. The court cited a prior ruling explicitly stating that a refusal need not be “knowing.”
In contrast, a Pennsylvania DUI court recently suppressed evidence of a blood test refusal where the defendant had been asked three times whether she would go to the hospital for a blood test, but had not been asked directly after the refusal consequence warnings had been read to her.