It is very hard to prove a "less safe" dui because the per se limit is ridiculously low:

Officer charged with DUI refused breathalyzer
Courtesy of news-journalonline.com: July 22, 2006

By JIM HAUG Staff Writer PORT ORANGE -- Several local police officers charged with drunken driving in recent years share something else in common, as well. They all refused to take a breathalyzer, thus depriving prosecutors of a blood-alcohol reading that could be used against them in court."If you have been drinking, refusing the breathalyzer is the only way to go," said Brian Toung, a Daytona Beach defense lawyer.

"The police, or anybody who understands the system, knows they're better off without it."

The most recent incident was late July 14 when an off-duty Port Orange police officer crashed his sedan into the woods just past where Yorktowne Boulevard dead-ends at Hidden Lake Drive, according to reports from the Florida Highway Patrol and Port Orange police.

The car, which was embedded into the side of a tree, had $10,000 worth of damage. A passenger, Eugene G. Smith of Sanford, suffered a leg injury, the reports show.

Police said Officer David Chapman had a strong odor of alcohol on his breath and his eyes were bloodshot and glassy.

When police asked Chapman to perform sobriety tests, he refused and wouldn't submit to a breathalyzer test, either. His speech "was somewhat mumbled during his statements," Trooper R.J. Steele wrote in the arrest affidavit.

Chapman was charged with one count of driving under the influence and DUI causing personal injury. He also was cited for not driving with his license. He was first taken to the Port Orange Police Department, then to the Volusia County Branch Jail. He was released July 15 after posting $2,000 bail.

Chapman is on paid suspension from the Port Orange Police Department. The department is conducting its own internal investigation against Chapman, who has been an officer there since 2004.

Chapman's phone number listed on his arrest report, when called this week, had been disconnected. There was no number listed for his passenger.

By not taking the breathalyzer, Chapman automatically forfeits his driving privileges for a year, but his legal options are not closed, either.

There is the possibility a judge could overturn the driving suspension at a hearing, which every defendant can request within 10 days of the arrest.

This occurs about 25 percent of the time, especially when the police make a procedural mistake during the arrest, Toung said.

Forty days after a drunken-driving arrest, a defendant can obtain a hardship license to drive to work, he said.

The Ponce Inlet police chief was arrested for DUI in 2002 and refused a breath test. The charge later was dismissed and his driver's license was restored seven months after the arrest. In 2003, a Daytona Beach police detective refused to take the breathalyzer after a drunken driving arrest. She was convicted of a lesser charge of reckless driving. And she soon won back her right to drive because the state was unprepared at her formal review hearing due to a bureaucratic mix-up.

Daytona Beach Police Chief Mike Chitwood said off-duty cops have "constitutional rights like everybody else."

"We may not agree with it, but it's their option (to not take sobriety tests)," he said.

It's a different story, of course, for police officers suspected of drinking on the job. Then they would have no choice but to submit to a breathalyzer, Chitwood said.

Plus, Chitwood said it is unfair to single out police officers, noting that many members of Congress have also refused the breathalyzer as well.

Without a breath or blood test the odds of beating a DUI conviction increase dramatically.  Although a refusal of the breath or blood can result in a license suspension, a license suspension is not a certainty if a Defendant driver requests a hearing within ten days of his arrest under Georgia law. Depending on the jurisdiction and police agency some refusal suspensions are reversed in an administrative hearing anywhere from 50%-75% of the time.  There are notable exceptions like the Georgia State Patrol Nighthawk Unit which patrol the Buckhead area in Atlanta and the Peachtree City Police in Fayette County which arrested their city manager on a golf cart.  Even with an administrative suspension, a not guilty verdict in a DUI trial will reverse the refusal suspension in Georgia.

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