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Can I Refuse a Breathalyzer Test?

Drunk-driving checkpoints, arrests, and convictions have become so common that everyone seems to have their own story about them or, if not, a friend-of-a-friend's story. And for every story, there are just as many armchair attorneys who know exactly what to do when faced with a Breathalyzer test. But which one is right? Here's a quick look at the real consequences of refusing a Breathalyzer.

DUI laws vary from state to state, so a qualified DUI lawyer can best address your particular legal needs, explain the law, and represent you in court. Take the first step now and contact a local drunk driving attorney to discuss your specific legal situation.

What Happens if I Refuse a Breathalyzer Test?

If you are pulled over and the police officer suspects intoxication, the officer will likely administer field sobriety tests and request a Breathalyzer test to determine your condition. Refusing a Breathalyzer test is becoming an increasingly common strategy among drivers, but is it a good idea?

If you refuse a Breathalyzer test, you will most likely face serious consequences. For instance, if an officer stops you and believes you are intoxicated, and you refuse to submit to a test to determine your blood-alcohol concentration (BAC), you may risk having your license suspended or even face jail time.

While you may not be under arrest at this point, refusing a Breathalyzer may not be such a great idea as prosecutors may still base a potential DUI/DWI charge on other evidence collected at the scene, including officer observations, witness testimony, or the results of a field sobriety test. In certain jurisdictions, your refusal may be used against you in any possible trial. Some state laws distinguish between refusing a mobile Breathalyzer test (which can carry a small penalty) and refusing a post-arrest blood, urine, or breath test at a police station or hospital (which can result in more severe penalties).

Implied Consent Laws

Since driving is considered a privilege and not a right, states can suspend or revoke your driver's license, levy fines, or even put you in jail for not submitting to a BAC test when suspected of a DUI. Under “implied consent laws," drivers implicitly consent to a BAC test in exchange for driving privileges. Therefore, you essentially surrender your driving privileges if you refuse a Breathalyzer.

States will generally penalize drivers for refusing to take the test by suspending their license for up to 12 months. Those with past DUI convictions can face even longer suspensions or jail time. However, some drivers may decide that the penalty for refusing a BAC test is less severe than a third or fourth DUI conviction.

On average, 20% of those suspected of driving under the influence refuse to take a BAC test, according to the National Highway Traffic Safety Administration (NHTSA). But major differences in state-by-state refusal rates suggest wide variances in how implied-consent laws are enforced. For example, 2.4% of drivers refuse a BAC test in Delaware compared to 81% in New Hampshire. It is important to know how your state enforces DUI penalties.

'No-Refusal' Enforcement

In response to drivers who refuse a Breathalyzer test to avoid incrimination, some states have adopted “no-refusal" DUI enforcement initiatives that can force suspects to submit to testing under the authority of a warrant. The ability of police officers to procure electronic warrants on their mobile devices from a judge has helped address the problem of a suspect sobering up before a paper warrant can be physically obtained. Further, refusing a warrant-ordered BAC test may result in serious contempt charges and could just result in police drawing a blood test by force.

More than half of all states have the legal authority to enact no-refusal DUI enforcement initiatives, but not all states actively use them. Also, some states may permit drivers to contact an attorney prior to deciding which chemical test to take after a traffic stop. Check with the laws in your state and local jurisdiction for more details.

What is Implied Consent?

All 50 states, as well as the District of Columbia, currently have implied-consent laws regarding these types of tests. When people apply for and are issued driver's licenses, they have indicated their consent to field sobriety and other tests to determine impairment.

Even with implied-consent laws in place, drivers have the right to refuse a Breathalyzer test. However, this does come at a cost. Because of implied consent, a driver who refuses could potentially have their license suspended. The suspension period varies by state.

The Consequences of Refusing

A Breathalyzer test is just one of several methods that police officers use to determine whether drivers should be taken into custody for suspected intoxication. In fact, the Breathalyzer is typically administered after the field sobriety tests, which may be enough for a DUI arrest. Although people have the right to refuse a Breathalyzer, this refusal often will not help them avoid a DUI charge if their impairment is clear.

In addition to the likely arrest, drivers who refuse the test can face other types of consequences for that action. As previously noted, many drivers will face the temporary loss of their license due to implied consent. Many will face fines as well. The consequences in some states include:

  • New York – Drivers face an automatic six-month license suspension and a fine of up to $500.
  • California – Drivers receive a citation for refusing a BAC test, but consenting to a blood test after initially denying the Breathalyzer will erase that citation.
  • Massachusetts – Drivers receive an automatic six-month license suspension and a lifetime suspension for the fourth DUI offense.

What is “No-Refusal" Enforcement?

Although all states have implied-consent laws, only 30 have adopted “no-refusal" policies, and many of those states are not actively enforcing the laws. These initiatives were created to force compliance among the growing number of drivers who refuse the Breathalyzer. Police officers found that allowing refusal was not deterring drunk driving, and they looked to no-refusal enforcement to help lower the number of unsafe drivers.

With a no-refusal, police officers can obtain a warrant from a judge to force the suspect to take a blood test. In the past, warrants were issued on paper and officers had to wait for the judge to review, sign, and return the document. During that time, drivers suspected of being impaired would become sober and the case against them was lost.

Today, police officers can use their mobile devices to get electronic permission from a judge until a paper warrant is issued. Individuals who attempt to refuse a blood test after this warrant has been issued now face additional penalties, including contempt charges, and officers in some states have the right to physically force a blood test. However, in June 2016, the U.S. Supreme Court ruled that in the absence of a warrant, states may not make the refusal to take a blood test a separate criminal offense.

Getting Legal Advice

Although drivers can refuse to take a Breathalyzer test, there can be serious consequences for this decision. The penalties for drunk driving if a conviction is obtained can be severe, so people who have been pulled over must understand what will happen if they refuse to take the test. They may want to meet with an experienced DUI attorney to discuss their situation and determine how to proceed.