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Context

I understand that, in most states, you more or less must* consent to a chemical blood alcohol content test if arrested on suspicion of DUI.

In Alabama specifically, the law states (emphasis added):

The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered … failure to submit to [a chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood] will result in the suspension of his privilege to operate a motor vehicle for a period of 90 days; provided if such person objects to a blood test, the law enforcement agency shall designate that one of the other aforesaid tests be administered.

This seems very strange to me. I can understand why someone might object to, say, a breath test, as those are notoriously unreliable, but it seems that Alabama law only provides drivers the option to object to a proper blood test.

Question

I found one source online, an informational blog post by a law firm, which claims:

A driver [arrested for DUI in Alabama] can refuse a specific type of [blood alcohol content] test in favor of another.

However, is that actually true? (The blog post in question did not cite its claim.)

Is there any precedent for the case where a driver has objected to a breath or urine test, insisting on a blood test instead; and such driver either being stripped of driving privileges for supposedly "refusing" a BAC test, or vindicated in his demand for a blood test specifically?

Or is there a great history of blood tests being readily available and preferred by law enforcement, and so this has never come up?

Or is the situation something entirely different?

The letter of the law lets you demand a breath or urine test if you're squeamish about needles, but the only thing I'm squeamish about is false convictions, so as a sober driver I hope to demand a blood test, and am concerned about these cases:

  • The arresting officer attempts to force me (under pain of Failure to Submit) to take a breath test in the car, before being taken back to the station.

  • I'm taken back to the station, where the officers insist that I take a breath test, and do not allow me to take a blood test.

  • I'm taken back to a station that doesn't have blood testing equipment.

If I were to refuse a breath test and insist on a blood test in these cases, the letter of the law seems to suggest that I — a sober driver actively demanding to be administered a BAC test — could be charged under AL Code §32-5-192(a) with Refusal / Failure to Submit to a BAC test and given the severe and debilitating sentence* of suspension of driving privileges. Hence my question asking about precedent there.

*I'm aware that this penalty isn't officially considered a criminal sentence, for obscure technical reasons related to protecting the "rights" of drunk drivers. This is a hair that I, as a sober driver, don't care to split[?]. The idea of exercising the "Birchfield option", which involves surrendering my driving privileges in in a Kafkaesque quasi-plea-bargain relating to a crime I did not commit, is simply off the table.

JamesTheAwesomeDude
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1 Answers1

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I went ahead and actually called a law firm that advertised Alabama DUI defenses about this question.

They said that:

  1. If you really are sober, and are arrested on suspicion of DUI in Alabama, do participate in the breathalyzer test if the cops request it, even if they forget to explicitly threaten you with suspension of your license;

  2. If you really are sober, but have reason to expect a breathalyzer will yield a false-positive, and are arrested on suspicion of DUI in Alabama, you should be clear and insistent about your preference for a blood-draw BAC test if arrested under suspicion of DUI;

  3. If you really are absolutely sober, are arrested on suspicion of DUI in Alabama, pop positive on a breathalyzer, and are refused access to a blood-draw BAC test despite repeated clear requests, you are pretty much screwed under current Alabama law;

    • Certain police jurisdictions are more likely than others to attempt this scheme, though it's not particularly likely to happen;

    • If this happens, your best hope is to get bailed out as soon as you possibly can, and pay out-of-pocket for an independent blood-draw BAC test no later than 24h after the arrest.

The question was so minor they did not even bother charging me for the advice. (It was amusing how much the fact that almost everyone who contacts them was actually at least a slightly drunk driver shaped their questions and advice, though.)

JamesTheAwesomeDude
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