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Can I Choose Which Chemical Test I Take?

When a driver is pulled over on suspicion of driving under the influence (DUI), the officer will likely ask the driver to perform field sobriety tests. Officers typically conclude that a driver failed the tests, even if the driver performed them reasonably well.

After the field sobriety tests are finished, the officer will usually ask the driver to submit to a preliminary breath test (PBT). The driver cannot be compelled to take a PBT. While an officer might view a decision not to blow into a PBT device as evidence of guilt, the fact is that the officer has probably decided that the driver is guilty and plans to make an arrest whether the driver fails or refuses the PBT.


Chemical Test

After an arrest, the driver will probably be asked to submit to an evidentiary chemical test. This test differs from the PBT because it has greater value as evidence in court. In addition, Iowa’s “implied consent” law usually imposes consequences upon drivers who refuse the evidentiary test. A refusal leads to a loss of driving privileges unless the driver had a legal justification for refusing.

The “implied consent” law deems a driver who is arrested for DUI to have consented to the submission of a blood, breath, or urine sample. That consent is only effective if an officer requests submission of a sample within two hours after the arrest. The sample can then be chemically tested for alcohol and the result can be used as evidence to prove that the driver was “over the limit.”


Choice of Chemical Test

Iowa’s implied consent law allows the officer to decide which of the three tests to request. The initial choice of administering a breath, blood, or urine sample belongs to the police officer. Drivers are not entitled to decide which of the three samples to provide.

As a practical matter, police officers don’t want to be troubled with urine collection so urine samples are not often requested. Urine tests also provide a less reliable measurement of alcohol in a driver’s blood than the test of a blood or breath sample.

If an officer asks for a blood sample to test for alcohol, the driver has the right to refuse. That refusal will not count as a violation of the implied consent law. Under most circumstances, the police cannot compel a driver to provide a blood sample unless the police first obtain a search warrant.

The rule may be different if the officer has a good reason to believe that the driver is under the influence of a drug other than alcohol. A driver who refuses to provide a blood sample for drug testing might violate the implied consent law, depending on the reason for the officer’s belief that the driver is under the influence of drugs. A DUI lawyer may be able to challenge the reasonableness of the officer’s request.

If a driver refuses a blood test for alcohol, the officer can then ask for either a breath or urine sample. Officers will typically ask for a breath sample. Whether the officer asks for a breath sample first or only after a driver refuses to provide a blood sample, a driver’s refusal to provide a breath sample is regarded as a violation of the implied consent law and can lead to a loss of driving privileges.

At the Law Office of Raphael M. Scheetz, we know how to use a variety of defense strategies that may lead to a “not guilty” verdict or reduce the penalties you face. Contact the Law Office of Raphael M. Scheetz to discuss how we can help you.

Read also other blog posts about Marijuana DUI in Iowa, What Police Looks for When They Search for Intoxicated Drivers on the Road, and the Right to an Attorney When Taking a Field Sobriety Test.


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