Can I Appeal To Get My License Back After Refusing a Breathalyzer?

How to appeal your suspension at a test refusal hearing in Mississippi

By S.M. Oliva | Reviewed by Canaan Suitt, J.D. | Last updated on June 28, 2023

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Getting pulled over on suspicion of drunk driving is a scary experience for many Mississippi residents. Even if you know that you did nothing wrong, an officer may still ask you to take a chemical test, such as a breath test, to determine your blood alcohol concentration (BAC) level.

Your first instinct may be to say “no,” but you need to be aware of the consequences of refusing a breathalyzer test.

Like many states, Mississippi has an implied consent law that applies to anyone who operates a motor vehicle on the state’s public roads.

When a police officer has “reasonable grounds and probable cause” to suspect a driver of driving under the influence, the driver is presumed to give consent to a “blood, breath, or urine test.”

By law, the test cannot be administered within the first 15 minutes after the driver has taken any food or drink.

So what happens if an officer asks you to take a chemical test and you refuse? Basically, your driver’s license will be automatically suspended. Driving is a privilege granted by the state. You do not have to be charged or convicted of criminal DUI in order to trigger a chemical test refusal suspension.

Under Mississippi Code, Section 63-11-5, refusal under the implied consent law carries a mandatory 90-day license suspension if you have no prior DUI convictions. If you do have a prior conviction, the suspension period will last a full year.

The arresting officer must inform you of these consequences at the time they request the blood test, breath test, or urine test.

The Review & Appeal Process for Breathalyzer Refusal

If you refuse a chemical test, the officer will take your driver’s license immediately and give you a receipt that allows you to continue driving temporarily while your case is under review.

The officer will then make a formal report to the Mississippi Department of Public Safety, which has jurisdiction over administrative driver’s license suspensions.

Again, it is important to note an administrative suspension is separate from any consequences you may face if later convicted of DUI. The Department only needs to find there was “probable cause” for the arresting officer to suspect DUI, that the officer requested a chemical test and you refused, and that you received proper notice that your license would be suspended as a consequence of said refusal.

If the Department upholds the suspension, it will send you a written notice to that effect.

Whether you’re facing a 90-day or 1-year suspension, it will begin 30 days after the notice is issued. But within 10 days of the Department’s decision, you have the right to file an appeal with your local circuit court. A judge will then hold a hearing, without a jury, at which time you can present evidence and cross-examine the arresting officer.

You cannot appeal to the circuit court, however, if your license is suspended as the result of a criminal DUI conviction.

Get a DUI Lawyer’s Help to Fight Loss of Driving Privileges

If you’re facing driver’s license suspension following a breath test refusal or other consequences in a DUI case, consider using the Super Lawyers directory to find a Mississippi criminal defense lawyer with experience in DUI law as soon as possible.

If you’d like more general information about this area of the law, see our DUI/DWI law overview.

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