Refusing a DUI Breathalyzer Test

Refusing a DUI test may be tempting if you only consumed a small amount of alcohol, or if you didn't drink at all and feel the officer is treating you unfairly. However, it is important to understand the possible advantages, and consequences, of refusing to submit to a blood alcohol test. Consult a DUI attorney with specific questions about how the law in your state treats refusal to take a DUI test.

Implied Consent Laws and DUI

Generally speaking, no one can be forced to give testimony against themselves and everyone has the right to remain silent. DUI law, however, is somewhat different because of implied consent laws. Implied consent laws are rules by some states that require you to submit to certain breath or sobriety tests or be subject to additional penalties. The theory is that since you chose to drive on a public roadway, you consented to the rules regarding driving while intoxicated. Whether the officer tells you or not, you have the right to refuse to submit to any type of sobriety test, including breathalyzers. However, your refusal can have several additional consequences. The extent of these consequences will vary depending on the DUI laws in your state, but most will involve extra penalties.

Penalties for Refusing a Breathalyzer Test

The first and most immediate result is a suspension of your license when you refuse a breathalyzer test. The length of your suspension will vary depending on the rules of your state. This initial suspension is automatic. You do not get the privilege, a trial or a hearing in front of a judge to decide if the suspension should occur. This suspension is considered administrative, which means it is not considered part of your penalties for the DUI charge and is carried out through your state's motor vehicle department. If you are later convicted of drunk driving, you will receive an additional suspension without any credit for the length of time that your driver’s license was suspended initially for refusing a breath test.

Many states will administratively suspend your license for refusing a breath test or a sobriety test. However, some states actually make the refusal to take a breath test an additional offense. In New Jersey, for example, you could potentially be found not guilty of drunk driving, but still be found guilty of and punished for the separate criminal offense of refusing to submit a breath sample for a breathalyzer test. 

Remaining Silent During a DUI Arrest

Under general constitutional theories you should have the right to remain silent, and the fact that you invoke that right should not be used against you. DUI law is the exception to this constitution theory. Most states will allow juries and prosecutors to make inferences about your decision to refuse any sobriety tests. Several state statutes expressly provide that a breath test refusal can be used against a defendant at their trial, and it’s one of the few times that prosecutors are allowed to comment on a defendant’s right to remain silent.

Making the Decision to Take a Breath Test or Sobriety Test

The decision on whether to take a breath test or a sobriety test is a difficult one. Most states and officers will not allow you to put everything on hold until you call and consult with an attorney. Usually, when you tell officers that you won’t take a sobriety test until you have talked with an attorney, this invocation of right to counsel will be considered a refusal of their sobriety or breath tests. You will have to make the decision on your own on whether or not to take the breath test. If you are falling down drunk, taking any type of sobriety test is only going to garner more evidence against you as you will likely be arrested either way. In this situation, you may want to refuse any sobriety or breath tests, unless you are required by law. On the other hand, if you know, or don’t think, you are intoxicated, you may want to consider taking the breath test or sobriety test.

Taking Field Sobriety Tests

Most sobriety tests are in the form of field sobriety tests (FSTs). Field sobriety tests require you to stand and walk in front of a camera to demonstrate whether you are in control of your body. If you do well on these tests, they can be persuasive evidence to a jury that you were not intoxicated, even though you may have been drinking. A good performance on field sobriety tests can result in a reduction of charges through a plea bargain, and potentially a not guilty at trial, even when the results of a blood or breath test are against you. 

If you decide not to take the breath test or sobriety test, keep in mind that many states have begun adopting mandatory blood draws. This means that even if you do not consent to a sample of your blood being given for testing, an officer can still transport you to a local hospital and have them draw a sample of blood. Mandatory blood draws are usually for repeat offenders or cases where you have been involved in an accident. 

Getting Help

Breath tests, sobriety tests, and field sobriety exams go against the major constitutional grain of most people. Unfortunately, they have been upheld by just about every court as legal. The only chance you have of avoiding the sobriety tests is to refuse (when you can) or avoid situations that will cause you to drink and drive in the first place. If you have been charged with DUI, consult with a DUI attorney in your jurisdiction to learn more about the penalties specific to your state.

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