The most common question that I get, as a DUI attorney, is whether or not to take a breath test in the event of a DUI arrest. Of course I say don’t. But you don’t need to take my advice. You can simply emulate the actions of most of the police officers who find themselves on the wrong side of the breath testing device.
For example, here is a link to a story about a former Prairie Grove police officer who is currently on trial for a DUI that occurred while on duty.
As is the norm for cases like this, the officer refused to take a breath, blood or urine test to determine his blood alcohol concentration.
From the Tribune:
A former Prairie Grove police officer admitted on the witness stand Thursday that he drank two plastic cups of eggnog before his Nov. 29 shift, which ended when his police SUV slammed into a pole and the officer was charged with driving under the influence.
But Oscar Baez, 52, of Bensenville, said he drank the eggnog about four hours before the start of his 3 p.m. shift. He also testified that he is not typically a drinker but just wanted to “taste it a little bit.”
In additional to misdemeanor DUI, Baez also is charged with felony official misconduct and disobeying a stop sign.
Baez sought to explain why he failed a portion of the roadside sobriety exam that involved tracking with his eyes a pen being moved from side to side. Baez said he had surgery on his eye as a child and has a weak eye muscle for which he wears corrective lenses. He had taken his glasses off before the sobriety exam.
McHenry County prosecutors allege that Baez was under the influence of alcohol when his vehicle crashed into a utility pole near the intersection of Illinois Highway 31 and Gracy Road about 10:30 that night.
Baez, however, said he crashed because his brakes failed and “went all the way to the floorboard” as he approached the intersection.
Responding officers testified earlier that Baez told them at the scene that “those glasses of eggnog must have been bigger than I thought.”
The officers said they smelled alcohol on Baez’s breath, that he slurred his speech and swayed during the sobriety test and that he was chewing breath mints. On the stand, Baez said: “I always have mints on me. I have some now.”
Baez also contradicted earlier testimony from police officers who said he refused to go to a hospital to submit blood and urine samples. He did acknowledge that he refused a breath test, saying he was “frustrated” knowing by that time that he was being arrested and charged with a DUI.
Baez resigned from his job the following day. He was a police officer for about nine years.
In other testimony Thursday, Martin Pireh, a paramedic who arrived on the scene and examined Baez for injuries, said he did not smell alcohol on Baez’s breath.
Baez was smart to refuse. He had no way of knowing what his BAC would turn out to be. Now the trial judge will have to decide whether the state can prove beyond a reasonable doubt that he was driving while intoxicated, without the benefit of a breath or other test, and with conflicting testimony between the arresting officers, Baez and the paramedic. I would not be surprised to learn that Baez’s gamble paid off.
The McHenry County judge hearing the case will make his ruling on November 3rd.