How to Dodge a DUI Test and the Legality of New Saliva Swabs

"You can refuse this swab, you can refuse a breathalyzer, you can refuse to participate in a field sobriety test, you can refuse to answer questions," says criminal defense attorney Mark Gallagher. "Now, law enforcement doesn't like this advice, but we do still have a constitution."

ReasonTV's Tracy Oppenheimer sat down with Gallagher to discuss the latest addition to LAPD's arsenal: saliva swabs that allegedly detect drug use. Gallagher advises to always decline sobriety tests, especially because these saliva swabs have yet to prove their efficacy in determining if drivers are indeed impaired from marijuana or other illegal substances.

"It doesn't tell us when they took it [marijuana], or how much they took, and how is it affecting their ability to drive the vehicle. And that's really what we need to know, to know whether or not that person is a safety risk on the road," says Gallagher.

Gallagher also provides insight into the constitutionality of the saliva swab tests, when law enforcement needs a warrant, and when compliance is necessary in order to avoid penalties at the DMV.

About 7 minutes.

Produced by Tracy Oppenheimer, shot by Paul Detrick and Alex Manning.

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  • Flemur||

    Bad advice in that video. Contrast with:

    "In every state, refusing to take a breathalyzer is allowed, but it's also grounds for punishment. That's because of "implied consent" laws.

    All states have adopted this law in some form and with varying penalties. In essence, the law forces drivers to consent to all field sobriety and chemical tests as a condition to being given a driver's license. There's no way to get around it. If you want to be a licensed driver, you have to consent.

    The penalties for refusing differ across the country. Typically though, drivers can be fined around $500 and/or even jailed. In most states, refusal results in an automatic license suspension for generally about six months.

    But the fun doesn't end there. As with most crimes, the punishment tends to create a ripple effect across one's life. In this case, a suspended license could cause your car insurance company to cancel your policy. And at the very least, your rates will likely go up."

  • AlgerHiss||

    In other words, one does NOT have the right to refuse.

  • CLamb||

    Mr. Gallagher says that it is illegal to refuse in California after arrest but not before. The findlaw blog doesn't address that distinction.

  • Nicholas Sarwark||

    One has a Fifth Amendment right to refuse, but (a) the refusal can be used as evidence in the trial against one, and (b) the state can impose civil penalties, such as loss of driving privileges for a refusal.

  • AlmightyJB||

    In Ohio if you refuse the breathalyzer your license will be suspended for six months. However, you can get driving to work privileges while under suspension and in most cases they will grant those. I don't recall EVER seeing a local judge or police officer take the breathalyzer when they've been pulled over for DUI. This makes sense since not taking the breathalyzer is your best chance of beating the charge if you have been drinking. There is the possibility that without the test results, your charges could be dropped and your license reinstated.

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  • Carol Xu||

    If you are driving drunk, you deserve the consequences, simple as that.
    With that being said, I have had a DUI before and if I faced the same thing again, I would do whatever it takes to get out of it. The legal costs, insurance costs, etc. of a DUI are just to much to handle.
    Expect to pay $10k+ for a good lawyer.
    Expect to pay at least $100/monthly for insurance. the absolute cheapest I found was $89/month from 4AutoInsuranceQuote... and that was minimum coverage.
    All in all, not a good thing to get yourself involved in.

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