When Should You Take a Breathalyzer?

Attorney says several factors depend on that answer

Tom Puckett
July 24, 2019 - 4:00 am

Buffalo, NY (WBEN) As Erin Kuntz returned to court and surrendered her driver's license, some were wondering why she didn't have to turn it over initially.

Kuntz is the East Aurora woman accused of hitting a nine-year-old girl with her car on Sunday and she is charged with DWI and vehicular assault after the girl was seirously injured in the incident.

Attorney Barry Covert says it does happen on occasion. "If someone does a refusal, generally they will lose their license at arraignment. But the judge is permitted to allow them to extend the arraignment or come back for a second part to bring a lawyer or for some time to research whether it's appropriate to take their license," says Covert. "In this case, she was arraigned in the early morning hours and the paperwork was not done, so the judge did the initial arraignment, and then have a continuation to determine whether the license should be revoked due to the refusal."

Covert says there are several factors as to whether he would instruct his client to take a breathalyzer.

"Whether there was an accident involved, whether there are any priors involved. If they have any priors, if it's within five years, that can dictate whether they can get a conditional license, within ten years that can also dictate some ramifications," explains Covert.

"You also try to make a live assessment as to you think the reading would be if the client did take the test, so you have some idea whether their speech is slurred, whether they're answering questions correctly, whether they're emotional. It's not black and white." But Covert says if there's no accident involved and his client has no priors, take the test.


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