You Can Refuse a Mandatory DWI Test in Louisiana, With Consequences |
Posted: July 21, 2017 |
In Louisiana, the regulations surrounding driving while intoxicated (DWI) and mandatory testing thereof can be somewhat obtuse and difficult to understand for those otherwise unfamiliar with the procedures and limits of the law. Certainly, most Louisiana drivers are not fully aware of their rights in a DWI situation, or how to respond to law enforcement during a stop — in the event of a DWI charge, however, the way you respond can have a significant influence on the outcome of your defense. To clarify the issues, let’s cut through the legal jargon and explore the mandatory DWI testing regime piece-by-piece.
DWI Exposure Affects Non-Drivers Too You do not have to be driving to be exposed to mandatory testing and even potential liability for DWI. Louisiana law exposes non-drivers to potential DWI liability as well. As a general rule, if you are capable of exercise actual physical control of the vehicle, then you can be arrested and charged with DWI. For example, suppose that you are sitting in the front passenger seat of a car, and you are intoxicated. In Louisiana, law enforcement may be able to arrest you for a DWI and subject you to mandatory testing if the circumstances are such that you could exercise actual physical control over the vehicle.
Probable Cause and Implied Consent Pursuant to Louisiana statutory law, as a driver (or as noted above, a person who is capable of exercising actual physical control over the vehicle) you are deemed to have consented — essentially, your consent is implied — to mandatory DWI chemical testing if a law enforcement officer has probable cause to believe that you have committed a DWI. The law enforcement officer has full discretion to decide which mandatory test to administer (blood, breath, urine) to you. Probable cause demands a rather low standard of evidence. The law enforcement officer need only show that there were reasonable grounds to believe that you committed a DWI. In the DWI context, establishing probable cause is quite simple. For example, if you are tired and your car is swerving slightly from left-to-right, a law enforcement officer may use such evidence to establish probable cause for DWI testing.
Refusal and its Consequences If the law enforcement officer establishes probable cause and demands that you take a mandatory DWI chemical test (blood, breath, or urine), you are entitled to refuse the chemical test. Refusal is not without its consequences, however. In fact, refusing to take the test has two major consequences: 1) refusal can lead to your driver’s license being revoked and possible jail time, and 2) your refusal to submit to mandatory chemical testing can be used as evidence against you in a DWI prosecution. Depending on how many times you have refused mandatory testing, the legal consequences may be more substantial. Your first refusal may lead to your license being revoked for a period of 1 year, while second and subsequent refusals may lead to your license being revoked for a period of 2 years. Your third refusal may come with mandatory jail time as well. Generally speaking, it is not a good idea to refuse mandatory chemical testing. Not only could you be subjected to significant penalties (i.e., license revocation and jail time), but refusal is not necessarily helpful to your defense in a DWI case. The prosecution will almost certainly argue that you refused chemical testing because you knew that you were intoxicated. Further, during the traffic stop, law enforcement will likely have subjected you to various field sobriety tests (i.e., stop-and-turn, etc.), which will be brought forth as evidence of your intoxication.
If you have been arrested and charged with a DWI, it’s important that you consult with an experienced DWI attorney as soon as possible. Your attorney will be able to provide guidance through the legal process.
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