I have been told that if you state you want to talk to your lawyer before taking any test that it’s not test refusal. Since legal representation is a right, they have to give you time to get in touch with a lawyer and for the lawyer to drive down and talk to you before they can call it test refusal and take your license. And if they call it test refusal it gets Thrown out - True or not?
I can only speak to how things work in Iowa. This is more than you asked, but it’s probably good information for people to know, as there is a lot of bad conventional information out there about OWI. Long and short, you have a right to legal representation during court proceedings. That doesn’t act as a means to prevent an officer from investigating an OWI.
I would first emphasize that there are multiple ways to commit OWI. There’s obviously the universal BAC over .08 which is a per se OWI. There is also a theory based on impairment. Technically a driver can be below a .08 and still be impaired. This accounts for intoxicants other than alcohol along with the fact that some people are physically impaired below a .08. There’s this general belief that .08 is the be all end all for OWI which isn’t accurate - you can still get an OWI if you appear impaired.
I would also emphasize that generally an OWI stop is broken into two parts: (1) The on scene portion of the stop; (2) The portion of the stop at the police station.
On scene officers are generally going to make initial contact with a driver and explain why the driver has been pulled over. Usually its going to be for a traffic offense. When people are actually impaired this is the point where they’re probably going to look and smell pretty drunk. Once the driver has been advised that an officer suspects an OWI the officer will ask them to preform several physical field sobriety test. The three basic ones are the eye test, walk and turn, and standing on one leg. There are others as well, but it kind of depends on the police department. After the physical tests are complete officers will also ask whether the driver wants to do portable breathalyzer for a preliminary breath test.
These tests are supposed to be completed in that order (physical test followed by the preliminary breath test) and drivers have the right to refuse to preform any/all of them. Generally, refusing to preform the tests - especially when a driver actually looks and smells drunk - isn’t going to go very well for the driver. Once the tests are completed, if the officer still believes the driver to be impaired they are likely getting detained and transported to a station to do a chemical breath test.
Once a driver gets back to the station they are going to go through an implied consent procedure with the officer. This is just basically a document explaining the drivers rights to them along with potential penalties and consequences if they perform or refuse the chemical breath test. As an example, refusing to perform the chemical test will result in a 1 year license suspension, while a failure will typically be only a 6 month suspension. At the end of the implied consent procedure the officer will ask the driver of they want to submit a chemical breath test. Before asking the driver to perform the chemical test most officers will ask if the driver wants to call anyone for advice, including their lawyer. From there the driver can make a phone call, and will ultimately have to decide where or not to submit the chemical test.
I doubt that most officers are going to wait for a lawyer to physically show up. Keep in mind that most OWIs are happening in the middle of the night, and by this point the officers will have been with the driver 30-60 minutes. A lot of drunk drivers really want to stall as long as possible to sober up. I suppose if a lawyer can get there very quickly the officer might wait, but their is nothing requiring counsel be present while you make a decision on whether or not to perform tests. Up to this point the driver hasn’t technically even been arrested yet, rather the officer is just investigating a suspected OWI.
