Refusal to take a DUI breath test due to confusion
DUI ATTORNEY: John, you heard the officer indicate you refused to take any chemical test?
DEFENDANT: Yes.
DUI ATTORNEY: Was there any particular reason why you refused?
DEFENDANT: I was confused.
DUI ATTORNEY: How were you confused?
DEFENDANT: The officer told me at the scene that I did not have to take the breath test, and then he told me I did have to take one.
DUI ATTORNEY: Hold on. When did the officer tell you that you did not have to take a breath test?
DEFENDANT: When he arrested me.
DUI ATTORNEY: Before or after the arrest?
DEFENDANT: When he arrested me.
DUI ATTORNEY: Okay, let’s take this one step at a time because it is confusing me. The officer testified that he had you perform FSTs and asked for a roadside breath test, do you remember that?
DEFENDANT: Yes.
DUI ATTORNEY: Then he arrested you and read the admonition about a chemical test.
DEFENDANT: I don’t know.
DUI ATTORNEY: What do you mean?
DEFENDANT: After he told me I needed to take a breath test, he told me it was voluntary, so I said no. Then he arrested me and told me I had to take a test, and I said no, just like I had said. I did not realize they were different tests.
DUI ATTORNEY: So, let me see if I can understand you. You did the FSTs?
DEFENDANT: Yes.
DUI ATTORNEY: Then the officer read or told you the PAS admonition?
DEFENDANT: Yes.
DUI ATTORNEY: Which is voluntary?
DEFENDANT: Yes.
DUI ATTORNEY: Which you declined as is your right?
DEFENDANT: Yes.
DUI ATTORNEY: Then, the officer told you that you had to give a test?
DEFENDANT: Yes.
DUI ATTORNEY: And that confused you since he had just said you had the right to refuse the test?
DEFENDANT: Exactly.
DUI ATTORNEY: About how much time went by between the time of the PAS request and the second request?
DEFENDANT: Less than 30 seconds. It was “I would like you to take this test, but you do not have to” followed by you are under arrest, then “you are required to give me the test.”
DUI ATTORNEY: So it was one right after the other?
DEFENDANT: Yes.