DWI and Refusal
I had one drink before I left work. I slid off the road and hit a guardrail at highway speed. It knocked me out. When police arrived I was receiving medical attention from a nurse passerby. I went through the field test, and was tricked into not taking the alcolizer. I had a stage 3 concussion later diagnosed that the hospital/neurologist. My appearance at the scene was that of a concussion victim (or intoxication), I refused the tested after I was told I didn't have to take it (long story). Can I make a legally binding decision with a concussion, can I be convicted of a DWI when the only evidence is my physical appearance at the scene (concussion).
2 Answers from Attorneys
Re: DWI and Refusal
If you had a concussion and that can be demonstrated, it could be used to show you were not in a position to consent to or assess an officer's demands. The court will look at fact of accident in addition to FST to determine if you were intoxicated, so it is possible to be convicted. You have some facts in your favor, but success in the case will be based on your lawyer analyzing all facts.
Re: DWI and Refusal
It sounds as though you are trying to say that you were not intoxicated, but you may have seemed like you were based on your concussion. The preliminary breath test (PBT), the test administered by law enforcement at the scene of the accident, or the place where you were stopped, cannot be used against you in a court of law, unless you challenge probable cause for the arrest. However, if probable cause exists for the arrest, then implied consent applies and, at that point, you must submit to a chemical analysis either of your breath or blood. If you refuse, then you can be charged with refusal on top of the DUI. So, there would be two charges instead of just the DUI and refusal carries with it an automatic 12-month suspension of your license. If you were not intoxicated, but the police arrested you anyway, then there are issues concerning the probable cause to make the arrest and, as a corollary, the refusal charge (see above). However, if you truly only had one beer, and the arrest for DUI was based on your behavior at the scene, post concussion, that would be difficult for the Commonwealth to prove the intoxication notwithstanding your behavior. Clearly, a concussion would explain lack of balance and coordination on the field sobriety tests, and it could also explain your subsequent refusal of the breathalyzer when you were transported to the police station. Also, if you made any statements to law enforcement concerning your alcohol consumption, there is a possibility that they could be suppressed based on your concussion. There must be a voluntary and intelligently waive to your right to remain silent and, in a demented state of mind, the argument could be made that you did not know what you were doing. Also, the officer MUST read you a form concerning implied consent and the consequences of refusal.
Hope that helps...DUI can be very technical...
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