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James B. Rooney

Attorney at Law

Bankruptcy FAQs
Divorce FAQs
Criminal and OWI FAQs

Can I refuse to take the breath test?

Yes, but there are consequences. The are two types of breath tests. The first is given on the road and is called the PBT test. Failure to take this test can result in a civil infraction. The second test is performed at the station as is commonly referred to as the breathalyzer or Data Master. Failure to take this test can result in six points being placed on your driving record, and your license suspended for one year. In addition, the police can request a search warrant for a blood test. So refusing the test could lead to severe consequences, and no real benefit. That is why it is generally recommended that a first time offender take the breath test.

What happens after I am arrested?

You will be booked at the jail. For lesser offenses, you may be given a bond at the jail. In most cases, you will be taken to the District Court for Arraignment, where a Judge or Magistrate will set your bond.

The most important thing to remember is to not make any statements to anyone until you have talked to your attorney.

Do I need an attorney at the arraignment?

Having an attorney at the earliest possible stage is always preferable. There is some evidence, such as video tapes, that are only available for a limited time. Also, having an attorney with you at the arraignment can often result in a lower bond.

What is a Preliminary Examination?

A Preliminary Examination is for felonies only, and it is a hearing to determine if there is sufficient evidence for the case to be transferred to the Circuit Court. All felonies start out in District Court, but all felony pleas or trials are held in the Circuit Court. Most defendants waive their Preliminary Exam. However, there are often good strategic reasons to hold the exam. This is a decision you will want to thoroughly discuss with your attorney.

Should I enter into a Plea Bargain?

This is a decision that ultimately only you can make, and the options available to you will very greatly depending on your type of case. Many clients wish to avoid having a felony on their record, and in some cases a felony can be reduced to a misdemeanor. In other cases, it is even possible to avoid having any conviction on your record. For example, those charged with a first time drug possession may be able to avail themselves of what is commonly referred to as 7411. There is a similar statute for defendants between the ages of 17 and 21, called the Holmes Youthful Trainee Act, or HYTA. These statutes allow a defendant who successfully completes probation to have their case dismissed. Of course, every defendant wishes to avoid jail. In some cases a sentence agreement can be reached to a term of probation.

If I decide to contest my case, how will we prepare for trial?

All witnesses will be interviewed before trial, and we will review all evidence. But the main issue often faced by a defendant is whether to hire experts. The Government has almost unlimited resources at their disposal, and most defendants are unable to match that. However, to the extent feasible, in many cases it will be to you benefit to hire experts. For example, in a drunk driving case it is almost always advisable to have our own expert to contest the validity of any breath tests. It may also be necessary to hire our own investigator in certain cases.

DISCLAIMER: The above is offered for information purposes only, and is not legal advice. Please consult an attorney before making any legal decision.