Can I Refuse a Breathalyzer Test?
Drunk-driving checkpoints, arrests, and convictions have become so common that everyone seems to have their own story, or, if not, a friend-of-a-friend’s story. And for every story there’s just as many arm-chair attorneys who know exactly what to do when faced with Breathalyzer test. But which one is right? Here’s a quick look at the real consequences of refusing a Breathalyzer.
What Happens if I Refuse a Breathalyzer Test?
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. And some state laws distinguish between refusing a mobile Breathlyzer (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 have implicitly consented 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, depending on the state. 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 percent 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 (for example, 2.4 percent in Delaware and 81 percent in New Hampshire) suggest wide variances in how implied consent laws are enforced. It is therefore important to know how your state enforces DUI penalties.
In response to drivers who refuse a Breathalyzer test to avoid incrimination, some states have adopted "no-refusal" DUI enforcement initiatives which 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 can 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 what chemical test to take after a traffic stop. Check with the laws in your state and local jurisdiction for more details.
The rules and regulations regarding consent to field sobriety tests can be complex, and it is important to be aware of your rights and responsibilities. If you have been arrested or charged with driving under the influence, or if you want to know what the rules are before that happens, you can consult with an experienced DUI attorney in your jurisdiction. You can also find more introductory information in FindLaw’s DUI section.