Can I Refuse a Breathalyzer?
When a person is pulled over and the police officer suspects intoxication, the officer will likely administer field sobriety tests and request a breathalyzer test to determine the driver’s condition. Refusing a breathalyzer test is becoming increasingly common strategy among drivers, but is it a good idea?
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. For example, 81 percent of people asked to take one in New Hampshire refuse it. However, this does come at a cost. Because of implied consent, a driver who refuses could potentially have his or her license suspended. The period of time varies by state.
The Consequences of Refusing
A breathalyzer test is just one of several methods that police officers can use to take into custody drivers suspected of intoxication. In fact, the breathalyzer is typically administered after the field sobriety tests and the failure of those tests is sometimes enough for a DUI arrest. Although people have the right to refuse a breathalyzer, this refusal often will not help them to 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 will earn 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 no-refusal, police officers can obtain a warrant from a judge in order 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 can be 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 crime.
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 need to 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.
The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.
Additional Drunk Driving Articles
- Drunk Driving Defense
- The Crime of Drunk Driving
- Defending a Drunk Driver Hit and Run Charge
- Possible Penalties for Drunk Driving
- The Constitutionality of Sobriety Checkpoints
- What is an Aggravated DUI?
- Overview of Drunk Driving Offenses in the United States
- Drunk Driving & Fourth Amendment Issues
- Breath/Blood Testing in Drunken Driving Cases
- DUI/DWI: The Crime of Drunk Driving
- Drunk Driving Defense Laws in Vermont
- Drunk Driving Defense Law in Rhode Island
- DUI Checkpoints
- DUI Traffic Stop: FAQ
- Should I take police breathalyzer/blood test?
- Reasonable Suspicion for a DUI Stop
- DUI Field Sobriety Tests
- DUI Basics
- Implied Consent Laws
- Breathalyzer Test FAQ
- Questioning Breathalyzer Calibration
- What are "acts of God" and are they covered by my homeowner's insurance policy?
- What happens when someone is arrested for drunk driving?
State Drunk Driving Articles
- District of Columbia
- New Hampshire
- New Jersey
- New Mexico
- New York