Category Archives: Breath Test Refusal

Jackson, Mississippi criminal defense lawyer Curt Crowley discusses the law, facts and consequences of breath test refusal in Mississippi.

Jackson, Mississippi Criminal Defense Lawyer Discusses Whether The Fact That You Refused The Breath Test Can Be Used Against You

Unfortunately, the fact that you refused the test can be used against you in Mississippi.

I frequently say that DUI cases are the only type of criminal case where the courts allow the Constitution to be “temporarily suspended,” in order to ensure that a person is convicted.  This sentiment is clearly demonstrated by the fact that Courts allow a breath test refusal to be used as proof of guilt at trial.

Considering that we (American citizens), have an absolute right not to be compelled to give evidence against ourselves, and the right not to be searched without a warrant, one might reasonably assume that our refusal to give a breath sample could not be used against us at trial.  Such an assumption is clearly reasonable, and based upon rock-solid logic.  Such an assumption is also wrong.

Mississippi Code Annotated Section 63-11-41 states that if a person refuses to consent to a test to determine his blood alcohol concentration, then the fact that he refused can be used against him at trial.  That’s fine, but what about the Constitutional prohibitions against giving evidence against oneself, and the requirement of a warrant?  The Mississippi Court of Appeals took care of that in the case of Price v. State, 752 So.2d 1070 (Miss.App. 2000).   

In Price, over the objection of the defense, the State introduced evidence that the Defendant had refused the test.  The Court of Appeals held that the refusal was admissible.  The basis, you ask?  The Court held “the very nature of a drunk driving charge makes it critical for the State to obtain the necessary evidence before that evidence dissipates with time.”  Translation: The State’s ability to convict you of DUI outweighs your right not to incriminate yourself.  As I said before, Courts are all-too-willing to suspend the Constitution in DUI cases.

Even though the deck is stacked against keeping the test refusal out of evidence, there are still possibilities to get the refusal excluded.  If you’ve been charged with DUI, please call me to discuss your case.

Mississippi Criminal Defense Attorney Curt Crowley

Jackson, Mississippi Criminal Defense Lawyer Explains When The Police Can Ask You To Take A Breathalyzer Test

The police can request that you submit to a chemical test of your breath, blood or urine only when they have reasonable grounds and probable cause to believe:  (1) that you were driving, or had actual physical control of, a motor vehicle; (2) that you drove or controlled the vehicle upon a public roadway; and (3) that you were under the influence of alcohol or another substance at the time you drove or controlled the vehicle.  See Mississippi Code Annotated Section 63-11-5.

If the police cannot prove all three of these things, you are under no obligation to provide a breath or other sample.  Also, if these elements are not proven, your license cannot be suspended for refusing the test.

As an aggressive Mississippi DUI defense attorney, I fight hard to protect and defend people who have been charged with DUI as a result of refusing the test.  If you’ve been charged with DUI, please call me today at 601.944.1984 to discuss your case.

Mississippi Criminal Defense Attorney Curt Crowley

Jackson, Mississippi Criminal Defense Lawyer Explains Mississippi’s Zero Tolerance For Minors DUI Law

Most folks know that under Mississippi DUI law, it’s illegal to operate a vehicle on Mississippi roadways with a blood alcohol concentration of .08% or more.  However, most people are shocked to learn that different rules apply to drivers who are under twenty-one (21).

Under Mississippi law, pursuant to Mississippi Code Annotated Section 63-11-30(1), it is illegal for a person under 21 to drive with a BAC of .02% or more.  If a person is under 21, he or she will be arrested for DUI for a .02.  This is sometimes referred to as the “zero tolerance” law.

Sound ridiculous?  It is.  From a physiological standpoint, it is darn-near impossible for a person with a .02 BAC to be impaired.  Such a low BAC has absolutely no effect on a person’s ability to safely operate a vehicle.  This law does nothing to take alcohol impaired drivers off the road.  The law simply does nothing to further the safety of the motoring public.

The zero tolerance law is also patently absurd because it defies logic.  For example, if a person who is 20 years and 364 days old gets pulled over and has a BAC of .02, he’s going to get arrested for DUI.  Twenty-four hours later, if that same person gets stopped and has the same BAC, he goes home.

While this law may be ill-conceived, it’s still the law.  The good news is that there are many defenses to someone under 21 who is charged with DUI under the zero tolerance law.  For more information about DUI, please click here.  If you have questions regarding DUI in Mississippi, please feel free to contact us.

Mississippi Criminal Defense Attorney Curt Crowley

Jackson, Mississippi Criminal Defense Lawyer Answers The Question: Can I Get A Hardship License After My DUI?

Probably.

If your driver’s license has been suspended for DUI, you may be able to get a hardship license (provided you did not refuse the test).  Under Mississippi Code Annotated Section 63-11-30, if you are convicted of a DUI-First Offense, your driver’s license will be suspended for 90 days.  However, a hardship license cuts this suspension to 30 days.

To obtain the hardship license, the defendant must file a petition in the circuit court where the conviction occurred, or the county where the defendant resides.  This proceeding is a civil case, and is totally separate from the Court proceeding where the criminal DUI charge was handled.

After the petition is filed, the Court will hold a hearing on the petition.  At the hearing, the defendant must prove that a driver’s license is necessary to (a) maintain employment; (b) attend school; or (c) obtain medical care.  This must be proven to the Court by clear and convincing evidence.  If the Court grants the petition, the defendant must pay reinstatement fees.  After this has been done, the driver’s license will be reinstated.

It is usually fairly easy to prove a hardship.  Courts routinely grant hardship licenses.  In fact, it is rare that Courts refuse to grant hardship petitions.  However, you must have a knowledgeable DUI defense lawyer to get your petition filed and push it through the system.

If you need a hardship license, or have other issues with your driver’s license, please call me to discuss your options.

Jackson, Mississippi Criminal Defense Lawyer Explains The Basics Of Mississippi DUI Law

I handle all types of criminal cases, from violent crimes to “paper” crimes. Of all the crimes I defend, I firmly believe that DUI cases are the most challenging.

DUI cases frequently involve more complex issues of law, science, physics and mathematics, than most other serious criminal cases. Further, in the past twenty years, the constitutional rights of persons charged with DUI have been severely limited. At the same time, the consequences of a DUI conviction–even a first offense–have become severe. In other words, it ain’t just a glorified traffic ticket anymore.

Posting information regarding Mississippi DUI law on this site could keep me busy for years. I think the best place to start is with what the law says is illegal when it comes to drinking and driving.

What is the crime of Driving Under the Influence under Mississippi law?

Driving under the influence is prohibited by Miss. Code Ann. § 63-11-30. This statute prohibits two (2) specific acts. First, the law prohibits a person from operating a vehicle upon the public roadways if his blood alcohol concentration (BAC) is .08% or more. This is commonly referred to as the per se DUI law. Second, the law generally prohibits a person from operating a vehicle anywhere in the State (public roadway or not), while under the influence of an “intoxicating liquor” or other substance which has impaired the person’s ability to operate the vehicle.

A person may be charged with violating both parts of the statute. However, he may be punished for only one violation, due to principles of double jeopardy.

If a person is charged under the per se section of the code, all the prosecution must prove is that the person operated a vehicle on a public roadway while having a BAC of .08% or more. That’s it. The prosecution is not required to prove that the person was impaired, that he was driving dangerously, or even that he was actually experiencing any effects from the alcohol. Simply having a BAC of .08% or more violates the statute.

If a person is charged under the general DUI section, the burden of proof for the prosecutor is more difficult. The prosecution must prove (a) that the person was under the influence of alcohol or another substance; and (b) that the alcohol or other substance impaired his ability to operate the vehicle. This section comes into play when the BAC is unknown (usually because the Defendant has refused the test), or where the Defendant is accused of being under the influence of “another substance” (such as marijuana).

Prosecutors typically attempt to prove impairment by showing that the Defendant was driving erratically, and/or that he appeared to be impaired when encountered by law enforcement (swaying, stumbling, falling down, lack of balance, etc.). If the prosecutor does not have this “impairment” evidence, the chances of a not guilty verdict are high.

These are the two (2) ways a person can be charged with DUI in Mississippi. Next time, we’ll talk about the potential penalties if a person is convicted of DUI.

If you’ve been charged with DUI, you need to retain a tough, aggressive Mississippi DUI defense attorney to protect your rights.

Jackson, Mississippi Criminal Defense Lawyer Explains Why You Should Just Say No To Field Sobriety Tests

All police officers have been trained in the detection of drivers who are under the influence of alcohol.  Police officers receive the bulk of their training in DUI detection via a course called “DWI Detection and Standardized Field Sobriety Testing.”  This course was developed by the National Highway Traffic Safety Administration (NHTSA).

The NHTSA course trains officers to administer three (3) field sobriety tests to a driver he suspects is DUI.  These tests include the Horizontal Gaze Nystagmus (HGN) test (following a pen with the eyes); the Walk-and-Turn test; and the One-Leg Stand test.

You should never, ever take these tests.  These tests can only hurt you.  The law does not require you to take these tests.  You have the right to refuse these tests, and there is no penalty to you if you decline to perform them.

Performing field sobriety tests is a bad idea for a number of reasons.  First, by taking the tests, you are helping the officer prove his case that you are under the influence.  At the point where the officer asks you to take these tests, he’s already decided you are under the influence.  Otherwise, he wouldn’t be offering you the tests at all.  The officer is asking you to perform these tests in order to give him more evidence that you are DUI.  No matter how well you do on the tests, it’s not going to change the officer’s mind.  Taking the tests simply gives the State more evidence to use to convict you.

Second, odds are that the officer will improperly administer the tests.  According to NHTSA, the tests must be administered exactly the way NHTSA prescribes, or the results are invalid.  These are “standardized” tests.  In theory, every police officer across the nation should administer the tests the exact same way.  Nice theory, but the fact is most officers administer the tests incorrectly.  This leads to an invalid result, regardless of whether you are under the influence.

Third, the tests, even if properly administered by the officer, are not reliable indicators that a person is under the influence of alcohol.  The error rates for these tests are so high that many courts will not allow the test results to be admitted into evidence.  Field sobriety tests are simply poor indicators of whether someone is impaired.

These tests are a lose-lose proposition.  If you perform poorly on these tests, the prosecution will try to use the results as evidence you were impaired.  If, in the unlikely event you do well on the tests, the prosecution will claim either (1) that you were under the influence of a substance other than alcohol, which is not detected by the field sobriety tests, or (2) that you are a heavy drinker and have a high tolerance for alcohol, thereby implying you are an alcoholic.

No possible good can come from taking these tests.  Don’t help the State convict you of DUI.  You have the right to refuse these tests–So use it!  If a police officer asks you to perform field sobriety tests, you should politely decline to do so.  If you have been arrested for DUI in Mississippi, please contact Jackson, MS DUI defense lawyer Curt Crowley to protect your rights.