Transcript of Episode 003 “Ask a Lawyer with Joey Franks” – Refusing a DUI Breath Test in Mississippi

What Happens if I won’t take a breath test?

Attorney Franks: Normally it means a license suspension for 90 days. In the first 30 days, the Department of Public Safety will send you a letter and you have 10 days to file a petition for a breath test refusal. During that hearing, they decide if you refused a breath test. It’s an important hearing and it’s always going to happen in the state of Mississippi.

Can I be forced to take the test?

Attorney Franks: On a standard stop no, they cannot force that test upon you. Keep in mind though, for an accident with injuries, they will get a warrant to force you to let them draw blood. However, for a random stop, like no blinkers, or improperly signaling a turn or lane change, they provide you with the portable breath test. You don’t have to take that test. But the cop can and probably will take you to the station and ask again for the breath test on what they call the Intoxilyzer. If you still refuse, then it’s official. But at the end of the day, you can refuse.

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Will it affect my case?

Attorney Franks: It’s not a foregone conclusion that it’ll mean you lose your case. Sometimes it can help your case because of what’s called the statutory DUI. In Mississippi, if you are above a .08 blood alcohol content, you are legally drunk. The cop has procedures to follow when you blow .08 or above. They are human and make mistakes, so we take a long hard look and see if they followed those important procedures. However, if you don’t take the breath test, then the police officer can’t write it up as a statutory DUI, according to procedures. In that case, the police officer has to prove common law DUI and show you were physically impaired while driving your car. To do that, they will try a what is known as the field sobriety test, roadside. We’ve all seen it at one time or another. That have you do things like walk a straight-line, hold one leg up, touch your nose – those kinds of things. When they have to resort to that, in many cases it leads to a stronger case that you were not over the limit and sometimes we can help you out since we’re an affordable DUI lawyer.

So, a person could get out of the DUI by refusing a breath test?

Attorney Franks: In theory, yes, it’s possible to avoid the breath test and get out from under the conviction, only because the cop has to show impairment with procedures that are not the breath test. It’s not their first resort by any means. If they can’t show proof with other methods, you have a really good chance of being found not guilty. You see, DUI’s are the same burden of proof, which is beyond a reasonable doubt. That’s why you need a DUI Attorney in Jackson MS to help you out.