In the state I live in, refusal of a breathalyzer test is evidence of guilt; this is a fairly recent law. Before this, if you refused you automatically had your license suspended (and this still applies).
A lot of the time it comes down to the police officer’s word versus yours if there is no test.
I was pulled over for flicking my cigarette ashes out the window while driving (FMCAOTWWD?). The cop pulled me over at 3am and asked my why I was motioning him to pass him. I said I was flicking my ashes out the window and gesturing while talking.
The cop then said he smelled alcohol, I told him he smelled my friend, who I was driving home. He said he smelled it on me; I said I was drinking non-alcoholic beer.
I had to get out of the car and do the roadside tests. I counted on my finger tips to 5 and back. He then made me follow his pen light and said I failed when I asked after a minute how long did I have to do this (as long as it takes to fail, I guess).
He then asked me if I had anything wrong with my legs and wanted me to walk heel-to-toe in a straight line. I pointed to the fairly ugly scars on my knees from 2 surgeries and said yes, I do have something wrong with my legs and I not doing that.
I was then arrested for DWI.
At the station, I said I wasn’t taking any tests or signing any forms until I talked to my lawyer. At this time in the morning, I got his voice mail and the test went down as a refusal.
The real eye-opener in the morning was when I read the charging documents upon release.
The documents claimed I had crossed the yellow double line once and then the white line of the shoulder twice, and THAT’S why he pulled me over. It said I failed the pen light test and refused the heel-to-toe for no reason.
At court, my lawyer got him to admit that I was facing his car at 10 feet during the pen light test and asked him how I was supposed to follow this pen light with the emergency lights blazing in my face.
This is when the officer said his emergency lights weren’t on.
COME ON! When has anyone seen someone pulled over by a cop with no lights on? This was a road with one lane each way at 3am!
This brings me to my next point.
There was no white line that I could have crossed on this road. It goes from double yellow line to curb.
The second best part of the trial for me was when my lawyer showed the cop photos of the road after getting him to describe the shoulder in detail.
Lawyer: “Was it asphalt or gravel?”
Cop: “The shoulder was definitely asphalt.” (Probably smugly thinking to himself that I couldn’t use a gravel shoulder as an instability excuse for not taking the heel-to-toe test with my bad knees).
The officer was at a little loss for words when asked to point out the white line and shoulder in the photos of the road where he had to admit the pull-over occurred.
THERE WAS NO SHOULDER OR WHITE LINE THAT I COULD HAVE CROSSED!
The best part of the trial: When the judge asked the prosecutor for a closing argument, the prosecutor just threw his hands up in the air.
The worst part: I had to pay a $100 fine and got a point for crossing the yellow line. Not to mention what I had to pay my lawyer.
Take home message: you can beat the “circumstantial” evidence and police testimony, but you need some evidence in your favor (and the cop’s stupidity helped a lot).
Sorry for the long post, but the BS of that night still burns me. Maybe I should have taken the breathalyzer at the station, but for all I know, I would have been told I failed.