Can I Refuse a Breathalyzer Test?

Drunk-driving arrests are more common than most people want to admit. Everyone seems to have their own story about a DUI. Or a friend-of-a-friend’s story. And for every story, there are just as many armchair attorneys who know what to do when faced with a breathalyzer test. There are consequences for refusing a breath test.

This is an overview of your rights to refuse a breathalyzer test. However, DUI laws vary from state to state. A qualified DUI lawyer can best address your legal questions, explain the law, and represent you in court. Take the first step now and speak to a local criminal defense attorney to discuss your legal situation.

What Is a Breathalyzer?

A breathalyzer is a device that analyzes a breath sample to test for the presence and concentration of alcohol in the body. The device displays the test results as the blood alcohol content (BAC). Operating a motor vehicle with a BAC over the limit is a crime in all states. In every state but Utah, the legal limit is under 0.08% BAC (in Utah, the limit is 0.05%).

Most modern devices use fuel cell alcohol sensors to detect levels of ethanol in the breath sample. The name “Breathalyzer” originally referred to the trademarked brand name of the first breath-testing device invented in the 1950s. Since then, the name has been genericized to refer to many types of chemical breath-testing devices.

However, there are essential differences between the portable, hand-held breathalyzers used at roadside stops and the machines at the police station. Preliminary breath test (PBT) devices are not as accurate, and the prosecutor cannot use them to prove impairment. However, they can give police officers probable cause to make an arrest.

More sophisticated machines in the police station give more accurate results used in court. However, even these machines need calibration and maintenance to be reliable.

What Happens if I Refuse a Breathalyzer Test?

If you get pulled over and the police officer suspects intoxication, the officer will request a breathalyzer test. If you refuse a breathalyzer test, you will likely face arrest.

If law enforcement officers arrest you for a DUI and you refuse a breath or blood test, you can lose your driver’s license. Some states also have criminal penalties for refusing a breath test after an arrest. This can include up to 48 hours or more jail time.

Refusing to submit to a breathalyzer to test your blood-alcohol concentration will not save you from criminal charges. Even if you do refuse, you can still face prosecution in a DUI case. The arresting officer can testify about how you were driving, field sobriety tests, and the smell of alcohol coming from your breath. Juries can also draw a negative inference from your refusal.

What Are Implied Consent Laws?

Driving is a privilege and not a right. States can suspend your driver’s license or even put you in jail for not submitting to a BAC test when suspected of a DUI. Under “implied consent laws,” drivers consent to a BAC test in exchange for driving privileges.

License revocation or suspension can be up to 12 months, even for a first offense. 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.

What Is Implied Consent?

When the state issues you a driver’s license, you have consented to breath testing to determine impairment after an arrest. Even with implied consent laws, drivers can refuse a breathalyzer test. However, this does come at a cost.

Because of implied consent, a driver who refuses could have their license suspended. Every state but Wyoming will suspend your license for refusing a breath test after a DUI arrest. The license suspension period varies by state. In some states, refusing a breath test can result in criminal penalties, including jail time.

What Is No-Refusal Enforcement?

Some states have adopted “no-refusal” DUI enforcement in response to drivers who refuse a breathalyzer test to avoid incrimination. With a warrant from a judge, law enforcement can force suspects to submit to chemical testing. Refusing a warrant-ordered BAC test may result in serious contempt charges and could result in police drawing a blood test by force.

In June 2016, the U.S. Supreme Court ruled that without a warrant, states may not make the refusal to take a blood test a separate criminal offense. However, breath tests are less invasive, and states can criminalize warrantless breath test refusals.

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

How Can I Get Legal Advice About DUI Charges?

Although drivers can refuse to take a breathalyzer test, there can be serious consequences. The penalties for drunk driving are severe. You must understand what will happen if you refuse to take the test. A local defense lawyer can review your criminal case and help you avoid a criminal conviction. Talk to an experienced DUI attorney about your legal rights to refuse a breath test after a DUI arrest.