May the Police Force Me to Give a Sample of My Blood or Breath?

Every state has "implied consent" laws for chemical testing of intoxication. The law views people who have a driver's license as automatically agreeing to submit to blood, breath, or urine tests to determine whether they are sober. In 1983, the U.S. Supreme Court ruled that a driver may be forced to submit to a blood alcohol test without the driver's consent or a warrant and without violating the driver's right against self-incrimination if the driver has already been arrested for another offense, such as vehicular homicide; the driver's blood has already been taken for another purpose, such as medical care; and such action is permissible under the state's implied consent law.

While police generally will not compel you to submit to a blood test, the Supreme Court decision discussed in the previous paragraph permits a blood test taken by force so long as the officer has probable cause to believe that you are under the influence.

If you can refuse to take the test, should you? There is no hard and fast answer to that question.

On the one hand, unless you are certain that you have had less than three or four drinks in the past hour, or less than five drinks in the past several hours, common wisdom holds that it is a good idea to refuse the tests. It generally is more difficult to convict a driver of drunk driving if no field sobriety or chemical tests are taken.

On the other hand, if you refuse to take a breath testing device test, your driver's license probably will be suspended automatically for a long period of time. In some states, for example, it will be suspended for six months, but only three months if you take and fail the test (if you are a first offender).

Family Legal Guide Copyright © 2000, 2002 American Bar Association