not a candygram

If you ask a shark if today is a good day to go swimming, of course it will say yes. He is a shark. On the other hand, you can’t blame him too much when he bites your leg.

I read an article in DemGaz last Saturday in the “Drivetime Mahatma”. It was called “Saying no to a breath test is a loaded subject.” In it, a reader asks if he had to blow into a portable breathalyzer that got stuck in his face at a DWI roadblock. The Mahatma proceeds to inform the readers that they have the “right” to reject the proof, but he implies that if they do, they will be charged with a Negative under the Ark. Ann.Code 5-65-205.

Then, in a very different move from Gandhi, he turned to the police for an answer. Arkansas State Police spokesman Bill Sadler was quoted as saying that he must “comply with the policeman’s requests.” While you’re at it, you might as well confess to the policeman about all the crimes you’ve committed.

Basically, that was the answer of the article. This is mine regarding portable breathalyzers: DON’T BLOW!

The Mahatma is right that you have the absolute right not to blow. That’s true whether he’s talking about the portable breathalyzer (or “PBT”) or the stationary breathalyzer at the station.

The Mahatma is WRONG to suggest that he will be charged with the separate offense of Denial if he refuses to blow the PBT. We have NEVER had a client charged with a refusal when the client refused to blow into a PBT. I can see where one might be confused… the statute (Ark. Code Ann. 5-65-202) says that if you drive, then you have already consented to a chemical test(s) (ie say, a breath test) , and does not provide an exception for a PBT.

However, Ark Ann.Code 5-65-204(b) and 5-65-206(c) require that a chemical test be performed in accordance with a method approved by the Department of Health (unless performed by the State Crime Lab ). Also, Ark. Ann.Code 5-65-206(d)(2) requires that the instrument be certified at least 1 time in the last 3 months and that the operator of the instrument be trained and certified. A PBT does not meet ANY of these requirements. As such, you cannot be required to submit to a chemical test that has not been approved as a “chemical test.”

Not to mention, a PBT is absolutely inadmissible in Arkansas as evidence of intoxication anyway. There are many good reasons why a PBT is inadmissible (ie. alcohol in your mouth, calibration, etc.), but I’ll save that for another day.

As for the stationary breathalyzer at the station, which IS admissible, you still have the right to refuse that test. HOWEVER, you will be charged a Denial. But there is no jail time or fine for Refusing. I know you’re saying to yourself, “What kind of ‘right’ is that when I’m charged with a crime for exercising my right?” I don’t have an answer for you on that.

Lastly, you don’t need me to tell you that any time you have a legal question about criminal law and the only authoritative answer is provided by a police officer, you may need to get a second opinion. And if you can’t get a second opinion in the short term, DO THE OPPOSITE!

Don’t get me wrong, I’m not blaming the Mahatma. MANY people are confused in this area of ‚Äč‚ÄčArkansas DWI law. So, there you have it… a second opinion. Now you don’t have to listen to sharks anymore.

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