Can I Refuse to Take a Breathalyzer Test?

And will I lose my driver’s license for refusing?

By Andrew Brandt | Reviewed by Canaan Suitt, J.D. | Last updated on November 8, 2023 Featuring practical insights from contributing attorneys John C. Schleiffarth and Matt Fry

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There are many ways to get charged with a DUI (driving under the influence) or DWI (driving while intoxicated), and numerous fines and penalties that result from them.

For example, you can get a DWI on private property, in a parking lot, and in a drive-thru. You can even get one if you’re sleeping in a motor vehicle that’s in park.

But whether you should refuse a breath test is not as clear-cut. This article explains the factors that go into making that decision on a case-by-case basis.

What is the Purpose of a Breathalyzer Test?

A breathalyzer is a device that law enforcement officers use to measure a person’s blood alcohol content (BAC) with a breath sample. In most states, the BAC legal limit is 0.08 percent for drivers who are 21 or older. Blowing a 0.08 or above means you are considered legally intoxicated.

Along with the Standard Field Sobriety Test (SFST), a breathalyzer is one of the tools that police officers use to determine if a driver is intoxicated. Failing the SFST or breathalyzer gives them probable cause for a DUI arrest.

I’ve had clients who have blown a high BAC [blood alcohol concentration] according to the test. But because we excluded the test—because there were problems with the way the officer did the test—we ended up getting the DWI charge reduced to careless driving instead. Never assume you can’t get a good result because you had a high breath test.

John C. Schleiffarth

Can I Refuse to Take a Breathalyzer Test?

To answer this question, you first need to know about implied consent laws. Every state has one. It means that if you drive in the state, you have thereby consented to BAC testing when lawfully requested by a police officer with reasonable suspicion that you’re intoxicated.

So, if a police officer sees signs of intoxication at a traffic stop—the odor of alcohol, slurred speech, open containers of alcohol, etc.— they can ask you to take the Standard Field Sobriety Test and blow into the breathalyzer. Under implied consent laws, you are deemed to have consented to this testing.

However, you can still refuse. The problem is that there will be legal consequences for refusing under the implied consent law—namely, the administrative suspension of your driver’s license and potential fines.

“A lot of the information the police officer gives them is, basically, ‘If you don’t take this, you’re going to lose your license immediately,’” says Matt Fry, a DWI attorney at Rosenblum Schwartz & Fry in St. Louis. “And that sticks in their head; it’s their biggest fear: ‘I need to drive to work, to get the kids.’”

Should I Refuse to Take a Breathalyzer Test?

You can refuse to take a breath test, but the more important question is whether you should. Will the benefits of refusing outweigh the disadvantages of having a driver’s license suspension? Should you just go ahead and take the test?

Most DUI attorneys agree that there is no one-size-fits-all answer to this question. It depends on your state’s DUI laws as well as how intoxicated you are.

For example, some states let the fact that you refused a breath test be admitted as evidence in court. In these states, refusal will tend to reflect poorly on your case. By contrast, other states don’t allow evidence of your refusal to be admitted in court. Here, refusing a test may give a better chance of defending against DUI charges. Or, say you only had one light beer at dinner, and you’re certain that a breathalyzer would show that your BAC is under the legal limit. In that case, refusing a test may not be the best strategy.

The point is that you have to decide on a case-by-case basis. Automatically refusing is not necessarily the best option in all situations.

Fry adds that even if you refuse a test, you’ll get a temporary license, which is “a piece of paper that allows you to drive for 15 days while you hire an attorney.” During that time, an experienced DUI attorney can often get you even more time to drive while the case is being litigated.

Note that other states have different requirements and durations for temporary driver’s licenses. In general, temporary licenses last until your first court date or a determination is made about suspending your license. A DUI lawyer in your area can advise you on your rights to a temporary or restricted license following an arrest.

I understand that they can only afford a certain amount of money, but they can find someone who they trust and are comfortable with and can afford. You just can’t navigate this on your own… Everyone has the right to represent themselves, but you know the old saying: He who represents himself has a fool for a client.

Matt Fry

What Are Your Rights Regarding a Breathalyzer Test?

Before you decide whether to blow or not, however, there’s an even more crucial question you may be wondering: Can I speak with a lawyer?

Again, the answer depends. In many states, drivers have no right to consult with an attorney before deciding whether or not to take a breath test. But you might be wondering: what about my Miranda rights to an attorney?

The problem is that implied consent laws are civil laws, not criminal ones. Violating an implied consent law by refusing a breath test is a civil violation. And Miranda rights only apply in criminal matters. So, you have Miranda rights to an attorney for your DUI criminal charges, but you don’t necessarily have a right to an attorney to decide about a breath test under the civil implied consent law.

That being said, some states do grant individuals the right to consult with an attorney before deciding on a breath test. Missouri is one such state, but the requirements to exercise the right are very specific.

“If you say ‘lawyer’ at any point once they’ve read the implied consent [notice], they have to give you 20 minutes to contact one,” says Fry. “Then you can decide whether or not you’re going to take a chemical test.” Both Fry and John Schleiffarth, a DWI attorney at JCS Law in St. Louis, have had cases thrown out because arresting officers did not follow proper protocols in either allowing the 20-minute window or administering tests.

How a Criminal Defense Attorney Can Help With DWI Charges

If you blow a BAC over the legal limit, you might think your criminal defense is hopeless. However, an experienced DUI lawyer can often successfully challenge evidence or prevent it from being admitted in the first place.

“I’ve had clients who have blown a high BAC [blood alcohol concentration], according to the test. But because we excluded the test—because there were problems with the way the officer did the test—we ended up getting the DWI charge reduced to careless driving instead,” says Schleiffarth. “Never assume you can’t get a good result because you had a high breath test.”

Lawyers with experience in DUI cases know the sort of questions to ask to challenge the validity of breath tests—as well as field sobriety tests. For example:

  • What kind of medical conditions does this person have?
  • Are they overweight?
  • Are they over 65?

“It may actually be something we can flip and use to their benefit: ‘This guy has two bulging discs in his back—of course he couldn’t stand on one leg,’” Schleiffarth says.

Attorneys can further help potential clients by gathering audio and video from cameras near the scene of the incident.

“I check the scene, look at the shoulder where they allegedly took the field sobriety test,” says Fry. “I get all the reports and dissect them, look for legal issues, improper investigations. I bring the officers into court for cross-examination and for administrative hearings so I can get to the root of what happened that night. There’s a lot that a lawyer can do that [someone representing themselves] can’t.”

“The most important thing is that the client calls me early, so we can help them while there’s still time,” adds Schleiffarth. “I’ve had good cases… where they waited too long and lost their driver’s licenses. We were able to get their licenses reinstated later, but they wouldn’t have lost them if they would’ve acted more quickly.”

How Much Does Getting a DWI Attorney Cost?

According to Fry, attorney fees for a first-time DWI can range anywhere between $5,000 and $10,000. Schleiffarth notes that, for a first-timer, the legal process can take four to six months.

Though first-time offenders may think DWIs operate like speeding tickets and decide to represent themselves, Fry discourages the notion.

“I understand that they can only afford a certain amount of money, but they can find someone who they trust and are comfortable with and can afford,” he says. “You just can’t navigate this on your own… Everyone has the right to represent themselves, but you know the old saying: He who represents himself has a fool for a client.”

Find an Experienced DWI Attorney for Your Criminal Case

If you’ve been charged with a DWI, strongly consider reaching out to a DWI defense lawyer as soon as possible. Many attorneys offer free consultations to learn more about your DWI case.

A DWI attorney will be well-versed in the state’s DWI laws and defenses. They will be able to give you legal advice and general information about your specific charges, including potential penalties for drunk driving, such as revocation of your driving privileges, fines, or jail time.

For more information about this legal area, see our DUI/DWI law overview.

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