Monday, November 3, 2014

How can I be Charged with Refusal to Blow if I am Presumed Innocent? ~ Best Answer on AVVO ~ Call Michael A. Haber, Esq. @ 1-888-SHARK-8-1

Q:     If you are alleged to be innocent until proven guilty, how is it legally possible to charge a refusal for breathalyzer?  Has any lawyer argued that implied consent laws are illegal. For example, if you let an officer in your house, at any time you can tell the officers that you changed your mind and to get out.

A:     Chosen as Best Answer by Asker on AVVO!

Michael Adam Haber


Contributor Level 20


Lawyers agree
Answered Respectfully, you are confusing separate and distinct legal theories (i.e. mixing apples and oranges).

1) There have been more challenges to Implied Consent than you can imagine. The bottom line with it (apart from its repeated survival of constitutional or other challenge) is that you do not have a "right" to drive. Driving is a "privilege", and it can be (and is) conditioned by the State. When you accept your FL-DL (or any DL or government issued "license" for that matter) the State agrees to permit you to drive on its roadways and in its borders and you agree to abide by all traffic laws and to submit to "any sobriety test required by law". In most circumstances the State cannot "force" or compel you to submit to breath, blood or urine testing, but, so long as you are first afforded "due process" (i.e. the right to a hearing / administrative review) then the State can penalize you by rescinding your driving privilege for your failure to abide by your contractual obligation.

2) Searches of your home are an entirely different matter. You enjoy a constitutional right to privacy in your home, the sanctity of which cannot be violated by law enforcement without a validly issued warrant or an established exception to the 4th Amendment "warrant requirement" (such as consent). The law of consent is pretty simple: If you are competent to give consent (i.e. you are of sound mind, you have standing and you know and appreciate the circumstances) and if your consent is given freely and voluntarily, then it is valid UNTIL and UNLESS it is withdrawn - at which time the search must stop (unless there is at that time an independent basis to continue sans a warrant - i.e. you consent, the cops enter and in plain view they see a severed human head or a mountain of cocaine, in which case your subsequent retraction of consent will be ineffective and the cops will proceed under the "plain view" exception to the warrant requirement, or, if while inside your house they hear painful screams emanating from your basement and you then ask them to leave, your subsequent retraction of consent will likely be ineffective and the cops will proceed under the "exigent circumstances" exception to the warrant requirement, etc).

In this regard consent to search is akin to your 5th Amendment Privilege Against Compulsory Self-Incrimination. When you are in custody and the cops want to question (interrogate) you they must first advise you of your "right" to say nothing and to have a lawyer present. At that juncture you enjoy the right to choose to lawyer-up, STFU, or to talk to the cops. If you choose to talk you can, at any time, change your mind and invoke your right to counsel, at which point the cops cannot ask you any more questions. However, if you reopen dialogue with them then all bets are off and the process starts again (i.e. you will be re-Mirandized and are once again free to lawyer-up, STFU, or to talk to the cops).

Implied consent sucks but it is the law. If you don't drink and drive then the odds are that you will never have to concern yourself with it; if you do, well, as the saying goes: "You buys your tickets, you takes your chances".

I hope that you had as much fun reading this as I did typing it.

You might also want to take a look at the following #HaberPA VideoFAQ:

# 06)  DUI - To Blow or Not -
Wishing you luck and hoping that I have been helpful in answering your question. 

First, second and third: No attorney-client relationship exists by virtue of any Q&A with Michael A. Haber, Esq. on Avvo. Fourth: Anything that you post on Avvo (or on similar sites) or on any social media is by its nature public. It is essentially an admission / confession and can be introduced into evidence as a statement against your interest in a subsequent legal proceeding. Once posted you lose any reasonable expectation of privacy, so, as this is an open forum (with no privilege attached), please be extra careful when considering what to post online (forewarned is forearmed.) 

At Michael A. Haber, P.A. the goals in representing folks are A) to be honest and realistic about litigation objectives; B) to be fair in regard to fees; C) to be consistently available and responsive to the client (in person, by phone call, text, email, Facebook. Twitter and otherwise); D) to keep the client informed; and E) to secure your positive feedback / client review at the conclusion of each case.

At Michael A. Haber, P.A. "Its all about reasonable doubt"!

Michael A. Haber, Esq. is prepared to speak with you about your case!

Cell: 305-798-2220; Office: 305-381-8686; Toll Free: 1-888-SHARK-8-1


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